Opinion
153251/2016
05-30-2018
Jamie FLORES, Plaintiff, v. Roman SANCHEZ, et al., Defendants.
Plaintiff's Attorney: Kamelia Katrina Poppe, Esq. The Law Firm of Poppe & Asscociates, PLLC. 212–792–9501, New York Defendant's Attorney: Paul H. Schietroma, Esq. 2662 Coney Island Avenue, 2nd Floor, Brooklyn, NY 11223. 212–714–2100.
Plaintiff's Attorney: Kamelia Katrina Poppe, Esq. The Law Firm of Poppe & Asscociates, PLLC. 212–792–9501, New York
Defendant's Attorney: Paul H. Schietroma, Esq. 2662 Coney Island Avenue, 2nd Floor, Brooklyn, NY 11223. 212–714–2100.
Andrew Borrok, J.
Recitation, as required by CPLR 2219(a), of the papers considered on the review of this motion summary judgment
PAPERS NUMBERED
Notice of Motion and Affidavits and Exhibits Annexed 1
Answering Affidavits and Exhibits Annexed 2
Replying Affidavits 3
Upon the foregoing cited papers, the Decision/Order on this motion is as follows:
Ricardo Rios' (Rios) and The Mexican Music Awards Corp (MMAC; collectively the Defendants) motion pursuant to CPLR § 3212 for summary judgment and dismissal is granted in its entirety.
Summary Judgment should be granted when the movant presents evidentiary proof in admissible form that there are no triable issues of material fact and that there is either no defense to the cause of action or that the cause of action or defense has no merit. CPLR § 3212(b). The burden is initially on the movant to make a prima facie showing of entitlement to judgment as a matter of law tendering sufficient evidence in admissible form to demonstrate the absence of any material fact. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]. Failure to make such a primary facie showing requires denial of the motion. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986] citing Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 476 N.E.2d 642, 487 N.Y.S.2d 316 [1985]. Once the showing has been made, the burden shifts to the opposing party to produce evidence in admissible form sufficient to establish the existence of a material issue of fact which requires a trial. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986] citing Zuckerman v. City of New York, 49 NY2d 557, at 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980].
In this case, pursuant to a Summons and Complaint, dated April 13, 2016, Jamie Flories (the Plaintiff) seeks $42,000.00 from Roman Sanchez, Rios, Jorge Hernandez, MMAC, Premious Gruperos, Aztec Media Group, LLC, The Mexican International Film Festival, and Festival International Del Mariachi. The action was discontinued by stipulation against defendant Jorge Hernandez on August 2, 2017. According to the Complaint, the $42,000.00 is comprised of a series of advances and an interest payment in the amount of $10,000 (the Loan). More specifically, according to the Complaint, there was an initial advance of $25,000 made pursuant to a Promissory Note, dated May 22, 2015, to the MMAC and signed by Roman Sanchez, an additional advance of $5,000 made in July, 2015, and an additional advance in the amount of $2,000 in August, 2015. Pursuant to the Plaintiff's deposition, the plaintiff testified that the loan was for 3 months and that there was an oral agreement to pay $10,000 of interest for the 3 month loan. This amounts to 125% per annum (i.e., 31.25% over the 3 month period).
See Exhibit F annexed to the Affidavit in Support of Motion. Plaintiff's deposition on Page 40, Line 17; Page 47, Line 13; Page 49, Line 12; Page 50, Lines 15 and 17.
According to the Complaint, the proceeds of the Loan were delivered to Mr. Sanchez, who represented that it would be used to finance the production of a play in New York City. The play opened in New York City and ran for two nights before it closed.
According to Mr. Rios, who is the President of MMAC, the Loan was made to Mr. Sanchez who invested the money in the production. That is, according to Mr. Rios, Mr. Sanchez did not have authority to borrow money on behalf of MMAC. This is however irrelevant.
Exhibit C to Affirmation in Opposition. Mr. Rios's deposition Page 27, Line 15.
New York General Obligation Law (NY G.O.L.) § 5–511 provides in relevant part that any note or contract for a loan that requires consideration in excess of that prescribed in Banking Law § 14–a is void. New York Banking Law § 14–a provides that the maximum interest rate chargeable to individuals shall be sixteen percent per annum. Accordingly, Mr. Rios' motion for summary judgment and dismissal is granted. Although, section 5–511 expressly does not apply to corporations, a corporation may interpose the defense of criminal usury under Penal Law § 190.40 which makes it illegal to charge an interest rate of more than 25% per annum. Accordingly, MMAC's motion of summary judgment is granted the action is dismissed against MMAC.
NY G.O.L. § 5–521.
NY G.O.L. § 5–521.
NY G.O.L. § 5–521(3).