Defendants' argument is rejected. The affidavit of a custodian of the records based on records maintained by a corporation in the ordinary course of business may constitute admissible evidence (see Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433 [2004]; DeLeon v Port Auth. of NY & N.J, 306 AD2d 146, 146 [2003]; First Interstate Credit Alliance v Sokol, 179 AD2d 583, 584 [1992]). Furthermore, "[i]t is well settled that a business entity may admit a business record through a person without personal knowledge of the document, its history or its specific contents where that person is sufficiently familiar with the corporate records to aver that the record is what it purports to be and that it came out of the entity's files" (DeLeon, 306 AD2d at 146; see also First Interstate Credit Alliance, 179 AD2d at 584; Rose Med. Acupuncture Servs. P. C. v Specialized Risk Mgt., 4 Misc 3d 1027[A], 2004 NY Slip Op 51078 [U], *2-3 [City Ct, Mount Vernon 2004]).
Defendants' argument is rejected. The affidavit of a custodian of the records based on records maintained by a corporation in the ordinary course of business may constitute admissible evidence ( see Hospital for Joint Diseases v. ELRAC, Inc., 11 AD3d 432, 433 [2004];DeLeon v. Port Auth. of N.Y. & N.J, 306 A.D.2d 146, 146 [2003];First Interstate Credit Alliance v. Sokol, 179 A.D.2d 583, 584 [1992] ). Furthermore, “[i]t is well settled that a business entity may admit a business record through a person without personal knowledge of the document, its history or its specific contents where that person is sufficiently familiar with the corporate records to aver that the record is what it purports to be and that it came out of the entity's files” (DeLeon, 306 A.D.2d at 146;see also First Interstate Credit Alliance, 179 A.D.2d at 584;Rose Med. Acupuncture Servs. P.C. v. Specialized Risk Mgt., 4 Misc.3d 1027[A], 2004 N.Y. Slip Op 51078[U], *2–3 [City Ct, Mount Vernon 2004] ).
Defendants argue, though, with respect to Brown Bark's proof, that one who is not an employee of the original creditor cannot authenticate documents of the original creditor. New York appellate courts, however, have rejected "the argument . . . that the affidavit of a [custodian of the records] based on records maintained by [the corporation] in the ordinary course of business d[oes] not constitute admissible evidence sufficient to establish a valid defense" ( Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433; see also DeLeon v Port Auth. of N.Y. N.J., 306 AD2d 146, 146; FirstInterstate Credit Alliance v Sokol, 179 AD2d 583, 584). Furthermore, "[i]t is well settled that a business entity may admit a business record through a person without personal knowledge of the document, its history or its specific contents where that person is sufficiently familiar with the corporate records to aver that the record is what it purports to be and that it came out of the entity's files" ( DeLeon, 306 AD2d at 146; see also First Interstate Credit Alliance, 179 AD2d at 584; Rose Med. Acupuncture Servs. P.C. v Specialized Risk Mgt., 4 Misc 3d 1027[A], 2004 NY Slip Op 51078 [U], *2-3 [2004])
However, An instrument that contains more than an unconditional promise to pay money is not necessarily disqualified as being for the payment of money only (First Interstate Credit Alliance, Inc. v. Sokol, 179 A.D.2d 583, 684 [1st Dept 1992]). The mere presence of additional provisions in the guaranty does not constitute a bar to CPLR 3213 relief, provided that the provisions do not require additional performance as a condition precedent to repayment, or otherwise alter the defendant's promise of payment (Juste v. Niewdach, 26 A.D.3d 416, 417 [2d Dept 2006]; Stevens v. Phlo Corp., 288 A.D.2d 56, 56 [1st Dept 2001]; Machidera Inc. v. Toms, 258 A.D.2d 418, 418 [1st Dept 1999]; Afco Credit Corp. v. Boropark Twelfth Ave. Realty Corp., 187 A.D.2d 634, 634 [2d Dept 1992]).
Under New York law, a plaintiff can make out a prima facie case for relief under N.Y. C.P.L.R. § 3213 by presenting an instrument for the payment of money only and claiming nonpayment according to its terms. See Miller, at 93; see also First Interstate Credit Alliance v. Sokol, 179 A.D.2d 583, 584 (1st Dep't 1992) ("Plaintiff established a prima facie case by proof of the existence and genuineness of the instrument and the failure to make payments thereunder."). This Court has little difficulty finding that Plaintiffs have met their burden of showing there can be no material factual dispute as to any of these elements, and that they are therefore entitled to judgment as a matter of law.
Under New York law, which governs the enforcement of the Note pursuant to its own terms a plaintiff seeking summary judgment must prove the existence of the note and the failure to make payments thereunder. See First Interstate Credit Alliance, Inc. v. Sokol, 179 A.D.2d 583, 584 (N.Y.App.Div. 1992) (affirming summary judgment on promissory note where no genuine issue of material fact prevented a finding that the note existed and no payments had been made). There is no dispute that Defendants failed to pay the Note in accordance with its terms.
To recover under a guaranty, a plaintiff must establish the existence of the loan, the unconditional guaranty, and the guarantor's failure to pay in accordance with the guaranty's terms. Bank Leumi Trust Co. v. Rattet Liebman, 182 A.D.2d 541, 542, 582 N.Y.S.2d 707, 708 (1st Dep't 1992); First Interstate Credit Alliance, Inc. v. Sokol, 179 A.D.2d 583, 584, 579 N.Y.S.2d 653, 654 (1st Dep't 1992). Here, it is undisputed that (1) there remains outstanding $20,682,699.04 in principal, plus interest, borrowed under the Letter Agreements; (2) in the Guaranty, Peru guaranteed repayment to the various original lenders or their assignees of any such amounts due and owing under the Letter Agreements; (3) Elliott is the assignee of various lenders' interests in and to the Letter Agreements; (4) the original borrowers are in default and Peru has failed to pay to Elliott the amounts due and owing under the Letter Agreements and has therefore breached the Guaranty; and (5) Elliott has suffered damages in excess of $20,682,699.04 as a result thereof.
The motion court properly amended the caption to reflect plaintiff's successorship by merger to the entity that issued the subject loans (see CPLR 1018 ; Banking Law § 602[4] ). Plaintiff established its prima facie case by submitting proof of the existence of the loans and nonpayment thereof (seeFirst Interstate Credit Alliance v. Sokol, 179 A.D.2d 583, 584, 579 N.Y.S.2d 653 [1st Dept. 1992] ). The affidavit based upon documentary evidence is sufficient to comply with the requirement of personal knowledge (see id. ; Barclay's Bank of N.Y. v. Smitty's Ranch, 122 A.D.2d 323, 324, 504 N.Y.S.2d 295 [3d Dept. 1986] ).
The affidavits at issue here do little more than assert that the affiants were told by Ibrahim Saleh, a former manager of 1141 Realty, that he was actually an owner, and the petition makes assertions premised only upon information and belief. Both the affidavits and the assertions are contradicted by the operating agreement ( Gould v. McBride, 36 A.D.2d 706, 706–707, 319 N.Y.S.2d 125 [1st Dept. 1971], affd.29 N.Y.2d 768, 326 N.Y.S.2d 565, 276 N.E.2d 626 [1971] [“Where, as here, the cause of action is based on documentary evidence, the authenticity of which is not disputed, a general denial, without more, will not suffice to raise an issue of fact”]; see also First Interstate Credit Alliance v. Sokol, 179 A.D.2d 583, 584, 579 N.Y.S.2d 653 [1st Dept. 1992] [where there were “affidavits ... from a corporate officer who averred to the genuineness and authenticity of the documentary evidence[, t]he unsubstantiated allegations and assertions raised by defendants were insufficient to withstand the motion”] ). Moreover here, petitioner itself submitted evidence that there were no documents in Ibrahim's name because he used other people's names to conceal his holdings.
However, had we not done so, we would hold that plaintiff met its prima facie burden on the initial motion for summary judgment by submitting evidence of defendant Eldorado Trading's promise to pay under the note, the guarantee by defendants Eldorado S.A. and Verpar, and nonpayment ( see Eastbank v Phoenix Garden Rest., 216 AD2d 152, lv denied 86 NY2d 711). Plaintiff also submitted evidence demonstrating it had purchased the note, which was held by BB Securities on its behalf in a secure account at Euroclear. Contrary to defendants' contention, the affidavit of a corporate officer with personal knowledge, together with authenticated business records, is admissible in support of a motion for summary judgment ( see First Interstate Credit Alliance v Sokol, 179 AD2d 583, 584). In addition, a certified statement of account issued by Euroclear was admissible under the terms of the note, which provided that such record would be "conclusive evidence" as to the identity of any holder, and because it had sufficient indicia of trustworthiness ( see Elkaim v Elkaim, 176 AD2d 116, 11.7 [1991], appeal and lv dismissed 78 NY2d 1072).