Opinion
Index No. 520718/2021 Motion Seq. 2
03-20-2023
SIGNATURE FINANCIAL LLC, Plaintiff, v. ENDEAVOR CONSTRUCTION GROUP- CORP., and JU.DA KLEIN-Defendants,
Unpublished Opinion
PRESENT: HON. LEON RUCHELSMAN, J.
DECISION AND ORDER
HON. LEON RUCHELSMAN, J.
The plaintiff moves pursuant to. CPLR §3212 seeking summary judgement regarding money owed, based upon promissory notes and related guarantees.. The defendant Juda Klein opposes the motion arguing that the plaintiff has failed to satisfy its burden that there are no questions of fact. Papers were submitted by all parties and after reviewing the arguments of all parties this court now makes the following determination.
On September 21, 2017 the plaintiff entered into a security agreement with the defendants whereby the, plaintiff extended a loan to the defendants in the amount of $229,894 for the purchase of various construction equipment- The defendants executed a promissory note in that regard. On January 24, 2018 the defendants executed another promissory note in the amount of $100,.250 following plaintiff's, loan Of that amount. On December 28, .201:8 the defendants executed another promissory note in the amount of $4 39,312.5:7 following plaintiff's loan of that amount. The defendant Juda Klein executed a guaranty regarding the;three notes. The defendant failed to make any payments in September and October 2020. The parties then entered into, a forbearance and consolidation agreement which required the defendants to make certain payments. The defendants failed to make a; payment due May 20, 2021 and has riot made any payments since that date. The defendants were informed that they were now in default and thereafter this lawsuit was commenced. The plaintiff has now moved seeking summary judgement arguing there are no questions of fact those amounts remain unpaid. The defendant has opposed the motion arguing the plaintiff has failed to satisfy its burden that no Issues of fact exist.
Conclusions of Law
Summary judgement may be granted where the movant establishes sufficient evidence, which would compel the court to grant judgement in his or her favor as a matter of law. Zuckermah v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). Summary judgement would thus be appropriate where no right, of action exists foreclosing the continuation of the lawsuit.
Generally, it is for the jury, the trier of fact to determine the legal cause of any injury (Aronson v. Horace Mann-Barnard School, 224 A.D.2d 249, 637 N.Y.S.2d 410 [1st Dept. 1996]). However, where only one conclusion may be drawn from the facts then the question of legal cause may be decided by the trial court as a matter of law (Derdiarian v. Felix Contracting Inc., 51 N.Y.2d 308, 434 N.Y.S.2d 166 [1980]) .
Thus, to succeed on a motion for summary judgement it is necessary for the movant: to make a prima facie showing of. an entitlement as a matter of law by offering evidence demonstrating the absence o:f any material issue of fact (Winecrrad v. New York University Medical Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]). Moreover, a movant cannot succeed upon a motion for summary judgement by pointing to gaps in the opponents case because the moving party must affirmatively present evidence demonstrating, the lack of any questions of fact (Velasquez v. Gomez, 44 A.D.3d 649, 843 N.Y.S.2d 368 [2d Dept. 2007]) .
It is well settled that where a party introduces evidence of the existence of a line of credit., personal guarantees and the defendant's, failure to make payments according to the terms of the instruments then summary judgement is proper (see, JPMorgan Chase Bank N.A. v. Bauer, 92 A.D.3d 641, 938 N.Y.S.2d 190 [2d Dept., 2012]). In this case the plaintiff submitted the affidavit of David McGowan a vice president and., director of portfolio services, for1: the plaintiff who stated, that he reviewed the bank's records in connection with the loans extended. He further stated that all the documents he: reviewed were maintained by the plaintiff. Thus, the plaintiff has established the admissibility of the records relied upon since Mr. McGowan had knowledge of. the bank's practices and procedures (see Cadlerock Joint Venture L.P. v. Trombley, 150 A.D.3d 357, 54 N.Y.S.3d 127 [2d Dept. 2017]). Therefore, the plaintiff established" its entitlement to summary judgement..
First there is no merit to the argument the motion should be denied so that the parties should be given the opportunity to conduct discovery and explore the possibility of any cure provision arguments. That is an improper basis upon which to oppose a motion for summary judgement. Indeed, the hope that future discovery might yield questions of fact is merely speculation insufficient to defeat a motion, for summary judgement. (Silverstein v. Westminster House. Owners Inc., 50 A.D.3d 257, 855 N.Y.S.2d 64 [1st Dept., 2008]). Thus, arguments that discovery might raise question of fact is without merit, (see, Lopez v. WS Distribution Inc., 34 A.D.3d 759, 826 N.Y.S.2d 516 [2d Dept. 2006]).
The defendant further argues there: are questions of fact whether the plaintiff afforded an opportunity to cure the default pursuant to the forbearance agreement. However Paragraph 11 of the forbearance agreement states that upon an event of a default whereby the defendant .fails to cure any default upon written notice within seven days then "pursuant to CPLR §3215 (i), Signature shall have the following rights: (a) to make an Ex-parte application to this Court or other Court of competent jurisdiction for an order of seizure of the 001, 002 artd 003 Equipment against Borrower and Guarantor" (see, FORBEARANCE CONSOLIDATION EXTENSION AND MODIFICATION AGREEMENT, §11 [NYSCEF DoC. No. 11]). This does not mean the plaintiff was foreclosed from commencing this action or that there are any questions of fact whether the. defendant owes the money contained in the complaint. Moreover, there are no questions of fact whether the plaintiff acted improperly by failing to extend the defendant additional time in which to make certain payments. Indeed, once an event of default occurred the plaintiff had a right to commence this action.
Therefore., no questions of fact have been presented and consequently the motion seeding summary judgement is granted.
So ordered.