Opinion
502536/16
04-07-2016
Arena Bagels, Inc. and Ravinder Aggarwal, Plaintiffs v. Brooklyn Bagels, Inc., Ali Alomari, and Bashar M. Alomari, Defendants.
Attorney for the plaintiff JESUS M. ZENO JESUS M ZENO, P.C. 396 ROGERS AVE, BROOKLYN, NY 11225 E-mail: zeno.law@verizon.net
Attorney for the plaintiff JESUS M. ZENO JESUS M ZENO, P.C. 396 ROGERS AVE, BROOKLYN, NY 11225 E-mail: zeno.law@verizon.net Francois A. Rivera, J.
By summons and order to show cause electronically filed with the Kings County Clerk's office (KCCO) on April 24, 2016, Arena Bagels, Inc. and Ravinder Aggarwal (hereinafter the movants) seek an order pursuant to CPLR 3213 for entry of an accelerated judgment in the sum of $57,499.76, plus interest, costs and attorney's fees against Brooklyn Bagels, Inc., Ali Alomari, and Bashar M. Alomari (hereinafter the defendants).
MOTION PAPERS
The movants' papers include an order to show cause, a summons, a request for judicial intervention in accordance with 22 NYCRR § 202.6, an affirmation of movants' counsel, an affidavit of movant Ravinder Aggarwal and seven annexed exhibits labeled 1 through 7 (hereinafter the commencement papers). Exhibit 1 is described as a promissory note dated September 16, 2015 (hereinafter the note). Exhibit 2 is described as defendants Ali Alomari and Bashar M. Alomari's written guarantee of the note. Exhibit 3 is described as a copy of a bill of sale. Exhibit 4 is dated October 26, 2015 and is described as the movants' written demand from the defendants for payment on the note (hereinafter the written demand). Exhibit 5 is described as the affidavits of service of the written demand on each one of the defendants. Exhibit 6 is described as the retainer agreement between the movants and their counsel. Exhibit 7 is annexed without any description or explanation and is denominated "Bulk Sale Notice Release."
LAW AND APPLICATION
The instant matter was assigned to Part 11 of the Kings County Supreme Court, Commercial Division for an order setting forth the party or parties which the movants were to serve, the manner in which they were to be served and the return date of the motion. By order dated March 1, 2016, the presiding Justice of Part 11 determined that the matter did not meet the criteria of the Commercial Division and referred the motion for reassignment. The motion was referred to Part 72, the ex-parte part of the Kings County Supreme Court and was thereafter randomly assigned to Part 52 for further proceedings.
For the following reason, this Court denies the motion and declines to direct the parties to be served, the manner of service and the return date of the motion.
CPLR Rule 2214 provides as follows: Motion papers; service; time. (a) Notice of motion. A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Relief in the alternative or of several different types may be demanded.
CPLR § 3213 provides in pertinent part as follows.
Motion for summary judgment in lieu of complaint. When an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint. The summons served with such motion papers shall require the defendant to submit answering papers on the motion within the time provided in the notice of motion.
CPLR § 3213 was a procedural reform that, for the limited matters within its embrace, melded pleading and motion practice into one step, allowing a summary judgment motion to be made before issue was joined (compare CPLR 3212) (Weissman v Sinorm Deli, Inc., 88 NY2d 437, 443 [1996]). Its purpose was to provide quick relief on documentary claims so presumptively meritorious that "a formal complaint is superfluous, and even the delay incident upon waiting for an answer and then moving for summary judgment is needless" (1st Prelim Report of Advisory Comm on Practice and Procedure, 1957 NY Legis Doc No. 6[b], at 91). The statute provides: "When an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint"( id ).
A document comes within CPLR 3213 if a prima facie case would be made out by the instrument and a failure to make the payments called for by its terms (Russo v O'Meara, 300 AD2d 563 [2nd Dept 2002]; citing Weissman v Sinorm Deli, Inc., supra). The instrument does not qualify if outside proof is needed, other than simple proof of nonpayment or a similar de minimis deviation from the face of the document" (Russo v O'Meara, supra 300 AD2d 563). Where the instrument requires something in addition to defendant's explicit promise to pay a sum of money CPLR 3213 is unavailable (Russo v O'Meara, supra 300 AD2d 563).
The movants' papers allege that the defendants purchased the movants' bagel and deli business located at 55 5th Avenue, Brooklyn, New York, pursuant to a purchase agreement, which contained various contractual obligations owed by the plaintiffs, including, inter alia, a non-competition covenant. The defendants allegedly agreed to pay the purchase price in part with a note backed up by the defendants' personal guarantee of payment on the note. The movants' papers undisputably seek an accelerated judgment pursuant to CPLR 3213 based on the defendants' alleged breach of their promise to guaranty payment on the note.
A CPLR 3213 application is not an ordinary motion. It is an action and as such it can not be brought on by the device of an order to show cause (Rivers v Cambridge Management Group, LLC, 16 Misc 3d 1136 (A) [Sup.Ct. Kings County 2007] citing Bullard v Bullard Orchards, Inc., 153 Misc 2d 136 [Sup.Ct. Saratoga County 1992]). Consequently, the motion papers are procedurally defective and are rejected without prejudice to renew on proper papers.
The foregoing constitutes the decision and order of this Court. Enter: J.S.C.