Opinion
887 CA 18–00340
10-05-2018
Darlene BIRJUKOW, Plaintiff–Appellant, v. NIAGARA COATING SERVICES, INC., Allen Richards and James Birjukow, Defendants–Respondents.
PHILLIPS LYTLE LLP, BUFFALO (KENNETH A. MANNING OF COUNSEL), FOR PLAINTIFF–APPELLANT. COLLIGAN LAW LLP, BUFFALO (A. NICHOLAS FALKIDES OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
PHILLIPS LYTLE LLP, BUFFALO (KENNETH A. MANNING OF COUNSEL), FOR PLAINTIFF–APPELLANT.
COLLIGAN LAW LLP, BUFFALO (A. NICHOLAS FALKIDES OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is granted, and the third through fifth ordering paragraphs are vacated.
Memorandum: In this action to recover on two promissory notes and guarantees executed by defendants, plaintiff contends on appeal that Supreme Court erred in denying her motion for summary judgment in lieu of complaint pursuant to CPLR 3213. We agree, and we therefore reverse the order insofar as appealed from, grant plaintiff's motion and vacate the third through fifth ordering paragraphs, which direct the parties to file certain pleadings.
Plaintiff met her initial burden of establishing entitlement to judgment as a matter of law "by submitting the notes and guarantees, together with an affidavit of nonpayment" ( I.P.L. Corp. v. Industrial Power & Light. Corp. , 202 A.D.2d 1029, 1029, 609 N.Y.S.2d 472 [4th Dept. 1994] ; see Rochester Community Sav. Bank v. Smith , 172 A.D.2d 1018, 1019, 569 N.Y.S.2d 277 [4th Dept. 1991], lv dismissed 78 N.Y.2d 909, 573 N.Y.S.2d 469, 577 N.E.2d 1061 [1991], rearg dismissed 78 N.Y.2d 1005, 575 N.Y.S.2d 279, 580 N.E.2d 765 [1991], rearg granted and lv. denied 79 N.Y.2d 887, 581 N.Y.S.2d 279, 589 N.E.2d 1261 [1992] ). In opposition, defendants failed " ‘to establish, by admissible evidence, the existence of a triable issue [of fact] with respect to a bona fide defense’ " ( Cooperatieve Centrale Raiffeisen–Boerenleenbank, B.A., "Rabobank Intl.," N.Y. Branch v. Navarro , 25 N.Y.3d 485, 492, 15 N.Y.S.3d 277, 36 N.E.3d 80 [2015] ; see Cutter Bayview Cleaners, Inc. v. Spotless Shirts, Inc. , 57 A.D.3d 708, 710, 870 N.Y.S.2d 395 [2d Dept. 2008] ). Defendants contend that they are entitled to an offset because plaintiff allegedly breached a related stock purchase agreement and, following the execution of the stock purchase agreement, coerced them into paying additional funds to which plaintiff was not entitled through economic duress. The evidence submitted by defendants in support of those contentions, however, is conclusory, unsubstantiated, and internally inconsistent in a manner that appears "designed to raise feigned factual issues in an effort to avoid the consequences" of plaintiff's otherwise valid motion for summary judgment on her claim to recover on the promissory notes and guarantees ( Buchinger v. Jazz Leasing Corp. , 95 A.D.3d 1053, 1053, 944 N.Y.S.2d 316 [2d Dept. 2012] ). Among other things, the affidavit of defendants' expert public accountant is "speculative and conclusory inasmuch as the expert failed to submit the data upon which he based his opinions. The affidavit thus lacks an adequate factual foundation and is of no probative value" ( Costanzo v. County of Chautauqua , 108 A.D.3d 1133, 1134, 969 N.Y.S.2d 317 [4th Dept. 2013] ). Finally, in addition to failing to raise a triable issue of fact with respect to economic duress, defendants waived any such claim "in light of the inordinate length of time which passed between the alleged duress and the assertion of the claim" ( Fruchthandler v. Green , 233 A.D.2d 214, 215, 649 N.Y.S.2d 694 [1st Dept. 1996] ; see Joseph F. Egan, Inc. v. City of New York , 17 N.Y.2d 90, 98, 268 N.Y.S.2d 301, 215 N.E.2d 490 [1966] ; Bethlehem Steel Corp. v. Solow , 63 A.D.2d 611, 612, 405 N.Y.S.2d 80 [1st Dept. 1978], appeal dismissed 45 N.Y.2d 837 [1978] ).