Summary
In Landmark Capital Invs., Inc. v. Li–Shan Wang, 94 A.D.3d 418, 419, 941 N.Y.S.2d 144 (1st Dept.2012), the foreclosure plaintiff relied upon an original loan file prepared by its assignor, a record that the plaintiff "[r]elied on... in its regular course of business."
Summary of this case from Bank of Am., Nat'l Ass'n v. BrannonOpinion
2012-04-3
LANDMARK CAPITAL INVESTMENTS, INC., Plaintiff–Respondent, v. LI–SHAN WANG, Defendant–Appellant,Innovation Datatronics Corporation, Defendant.
David S. Friedberg, New York, for appellant. Daniel S. Roshco, P.C., New York (Daniel S. Roshco of counsel), respondent.
David S. Friedberg, New York, for appellant. Daniel S. Roshco, P.C., New York (Daniel S. Roshco of counsel), respondent.
FRIEDMAN, J.P., DeGRASSE, FREEDMAN, ABDUS–SALAAM, JJ.
Judgment, Supreme Court, New York County (Marcy S. Friedman, J.), entered December 22, 2010, awarding plaintiff the total amount of $69,211. 12, unanimously affirmed, with costs. Judgment, same court (Louis Crespo, Special Referee), entered December 22, 2010, which awarded plaintiff attorneys' fees in the total amount of $21,489.60, unanimously affirmed, with costs.
The record supports the finding that defendant Wang (defendant) was properly served. The detailed description of the service attempts on defendant and of the interior of defendant's building supported the determination that the process server was credible. Although the process server was under investigation for improper record keeping by the Department of Consumer Affairs, the relevant portions of the record support the finding that his version of facts was accurate ( cf. Matter of Barr v. Department of Consumer Affairs of City of N.Y., 70 N.Y.2d 821, 523 N.Y.S.2d 435, 517 N.E.2d 1321 [1987] ).
Plaintiff established its entitlement to judgment as a matter of law by relying in part on the original loan file prepared by its assignor. Plaintiff relied on these records in its regular course of its business ( see Merrill Lynch Bus. Fin. Servs. Inc. v. Trataros Constr., Inc., 30 A.D.3d 336, 337, 819 N.Y.S.2d 223 [2006], lv. denied 7 N.Y.3d 715, 826 N.Y.S.2d 180, 859 N.E.2d 920 [2006] ). Defendant failed to raise a triable issue as to whether plaintiff was “doing business in this state without authority,” which, under Business Corporation Law § 1312(a), would preclude it from bringing suit. Although plaintiff often purchased debt held by New York debtors, this, as an activity carried on by an Ohio company with no offices or employees in New York, is not sufficient to constitute doing business under section 1312 ( see Beltone Elecs. Corp. v. Selbst, 58 A.D.2d 560, 396 N.Y.S.2d 21 [1977] ).
Defendant also failed to raise a triable issue on her defense of fraudulent inducement. Defendant did not allege any misstatement by the maker of the loan. Rather, she asserted that she signed the guaranty without knowing what it was, which does not constitute a defense ( see Imero Fiorentino Assoc. v. Green, 85 A.D.2d 419, 420, 447 N.Y.S.2d 942 [1982] ). Nor did the court abuse its discretion in allowing plaintiff to make a second summary judgment motion correcting certain defects, where that motion clearly enhanced judicial efficiency ( see Detko v. McDonald's Rests. of N.Y., 198 A.D.2d 208, 209, 603 N.Y.S.2d 496 [1993], lv. denied 83 N.Y.2d 752, 611 N.Y.S.2d 134, 633 N.E.2d 489 [1994] ).
We have considered the remaining arguments and find them unavailing.