Opinion
31403/06.
Decided February 17, 2009.
In this action to recover payments due under trust agreements, plaintiff Groupex Financial Corporation (plaintiff) moves for summary judgment in its favor in the sum of $111,275.43, plus accrued interest, attorney's fees, and late fees, against defendant Giromas Trading Corp. (Giromas) and Consuelo Aristizabal (Artistizabal) (collectively, defendants).
Laura Dilimetin, Esq., Manhasset, New York, Attorney for Plaintiff.
Eduardo Cruz-Lopez, Esq., Jersey City, NY, Attorney for Defendants.
Plaintiff is a money services business, licensed by the State of New York as a money transmitter. On February 18, 2004, plaintiff entered into three trust agreements, i.e., a Trust Agreement for the Sale of Money Orders (the Money Order Agreement), a Wire Transfer Service Trust Agreement (the Wire Agreement), and a Money Order Plus Seller Trust Agreement (the MOP Agreement) (collectively, the Trust Agreements) with Giromas. Under the Trust Agreements, Giromas, was authorized to promote plaintiff's products by selling plaintiff's wire transfer services, its money orders, and Money Order Plus money orders to the public, as plaintiff's agent, and Giromas was required to remit the proceeds from these sales, less commissions, to plaintiff.
Pursuant to the Trust Agreements, Giromas was a "direct deposit" agent of plaintiff. As such, Giromas was required to remit the trust funds that it received from the sale of plaintiff's wire transfer services, money orders, and Money Order Plus money orders directly into a bank account maintained by plaintiff, using coded deposit slips provided by plaintiff, on a predetermined schedule. The Trust Agreements specifically provided the remittance and reporting procedures and required Giromas to maintain records of all transactions, forms, receipts, and all other records that it compiled in connection with its sale of money orders and wire transfer services. The Trust Agreements were all executed by Aristizabal as the president of Giromas on its behalf.
Aristizibal also executed three guarantees dated February 18, 2004, each entitled the GFC Trust Agreement Personal Indemnity and Guaranty (i.e., the Money Order Guaranty, the Wire Guaranty, and the MOP Guaranty), as attachments to the Money Order Agreement, the Wire Agreement, and the MOP Agreement (collectively, the Guarantees). The Guarantees each provided that in order "[t]o induce [plaintiff] to enter into . . . the Trust Agreement[s]"Aristizabal, as the guarantor, "personally and unconditionally guarant[eed] the full performance of the Agreement by [Giromas]." They further provided that Aristizabal "agree[d] to indemnify [plaintiff] against any and all damage, loss, expense, fees, costs (including interest and attorneys' fees) and liability which [plaintiff] may sustain by reason of or related to any failure by [Giromas] to perform the [Trust] Agreement[s]."
Aristizabal is the owner of Giromas in connection with both of its locations on Hempstead Parkway in Elmont, New York, as evidenced by the amended business certificate for these two locations, executed by her on March 2, 2004. Jacqueline Sanchez and her husband, Jose Antonio Sanchez, also claim to be owners of Giromas.
Plaintiff claims that Giromas has failed to deposit the full proceeds, less its commissions, into plaintiff's bank account as required by the Trust Agreements, and that Aristizabal has failed to make payment for this debt owed and unpaid by Giromas pursuant to the Guarantees. Consequently, on October 17, 2006, plaintiff brought this action against defendants, seeking payment for the trust funds owed by Giromas under the Trust Agreements, and owed by Aristizabal pursuant to the Guarantees, plus reasonable attorney's fees incurred due to defendants' default in payment. Defendants have interposed an answer to plaintiff's complaint in which they admit a contractual relationship with plaintiff but generally contending that defendants are without knowledge or sufficient information to form a belief as to the truth of the allegations contained in plaintiff's complaint.
In addressing plaintiff's motion for summary judgment, it is noted that "[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case " (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; see also Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d 557, 562). Once the movant makes such a prima facie showing, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of genuine triable material issues of fact which require a trial of the action ( see Alvarez, 68 NY2d at 324; Zuckerman, 49 NY2d at 562).
It is well established that it is incumbent upon a party who opposes a summary judgment motion to "assemble, lay bare, and reveal [its affirmative proofs] in order to establish that the matters set forth in [its answer] are real and capable of being established at a trial" ( Castro v Liberty Bus Co., 79 AD2d 1014, 1014; see also Fallon v Berney, 189 AD2d 1028, 1031; Di Sabato v Soffes, 9 AD2d 297, 301). Thus, in order to defeat a prima facie showing of entitlement to relief the opposing party must lay bare, in evidentiary form, the evidence upon which it relies; bald and broad conclusory assertions are insufficient ( see Zuckerman, 49 NY2d at 562; S.J. Capelin Assoc. v Globe Mfg. Co., 34 NY2d 338, 342-343; Blankman v Incorporated Vil. of Sands Point, 249 AD2d 349, 350; Denton Publs. v Lilledahl, 112 AD2d 658, 658-659).
Plaintiff has acknowledged that defendants, in response to its notice for discovery and inspection, had provided statements reflecting the sales and payment activities of defendants and copies of Giromas' deposit slips. Plaintiff asserts that defendants' discovery responses show that $111,275.43 has failed to be deposited by Giromas. Plaintiff has submitted the sworn affidavit of Robert Trevino, who is plaintiff's manager of credit and collections, in which he conclusorily attests that, beginning in May 2004, Giromas failed to deposit a total of $111,275,43 in trust funds from the sale of plaintiff's products and services into the bank account, and has never paid these trust funds to plaintiff.
To further support its claim, plaintiff, following a review of defendants' discovery responses, has prepared a spreadsheet (Exhibit J to plaintiff's motion) entitled "Giromas Sales and Payment Monthly Summary"listing the monthly total sales, the total payments, and the total difference (amount short) between the sales and payments for the time period from April 2004 to June 2006. The spreadsheet also reflects the yearly total sales, payments, and amounts short for 2004, 2005, and 2006. The total amount short for these years equals $111,275.43. Robert Trevino attests that the spreadsheet accurately summarizes the instances when Giromas failed to make the required payments and the amounts of these payments but has not specifically documented those transactions for which payments were not forwarded to plaintiff.
In opposition to plaintiff's motion, defendants have submitted the affidavit of Jacqueline Sanchez, who claims to be the president of Giromas (although it is noted that Aristizabal had executed the Trust Agreements and the Guarantees as Giromas' president), admitting that Giromas entered into the Trust Agreements. Jacqueline Sanchez states that she and her husband, Jose Antonio Sanchez, own and operate the business of Giromas, and that she maintained the accounting for the two business locations of Giromas, which included the daily deposits of the business slips. Sanchez, asserts that she will testify that Giromas has not failed to deposit a total of $111,275.43 as alleged in plaintiff's complaint and Robert Trevino's affidavit, and that plaintiff was paid in full in this matter.
Defendants, have submitted four bound volumes, consisting of an assortment of various deposit slips, lists of money orders, and check registers. Other than the above mentioned conclusory statements of Jacqueline Sanchez and defendants' attorney, Mr. Cruz-Lopez, Esq., that these documents demonstrate that defendants have made the appropriate payments, there is no explanation whatsoever as to how these documents, in fact, demonstrate this or how they even raise a triable issue of fact with respect to such payments. When an affiant relies on attached documents, he or she must establish an adequate evidentiary basis for them. Simply annexing numerous documents, without any identification, explanation or proper evidentiary foundation, is inadequate ( see Higen Assoc. v Serge El. Co., 190 AD2d 712, 713; Spitzer v Schussel, 17 Misc 3d 1120 [A], 2007 NY Slip Op 52084[U], *3 [Sup Ct, NY County]; Palisades Collection, LLC v Gonzalez, 10 Misc 3d 1058 [A], 2005 NY Slip Op 52015[U], *1 [Civ Ct, NY County 2005]).
Although defendants did not initially submit these exhibits to plaintiff and, thereafter, submitted them to plaintiff as "amended" exhibits, inasmuch as plaintiff was served with them and submitted a response thereto, the court has accepted and considered these exhibits.
However, plaintiff has failed to carry its burden to establish by competent proof absolute entitlement to summary judgment by supplying sufficient evidence to demonstrate the absence of a material question of fact. The conclusory allegations of Robert Trevino based upon a summary spreadsheet obviously prepared for this litigation, without specificity or supporting documentation, are inadequate in light of defendants' denials. (The Court is disregarding the incompetent representations of counsel on both sides). It is, after all, plaintiff's burden to prove a prima facie case; it is not defendants' initial burden to prove a negative, i.e., that it does not owe money to plaintiff.
Although plaintiff has annexed, in support of its motion, a document entitled "Giromas Missing Deposit Recap", which was apparently supplied to defendants as a part of "Plaintiff's Responses To Defendants' Notice For Discovery and Inspection," this listing does not alone establish the plaintiff's claim. Moreover, the affidavits of Robert Trevino, sworn in California, are not accompanied by the certification required by CPLR § 2309 (c), nor is there a translation of the foreign-language documents annexed to the motion as required by CPLR 2101(b).
Accordingly, plaintiff's motion for summary judgment is denied. With respect to plaintiff's claim as against Aristizabal based upon the Guarantees, it is undisputed that Aristizabal signed the Guarantees. Indeed, defendants, in their answer, admit that Aristizabal personally guaranteed all debts owed to plaintiff by Giromas by written personal guarantees. No affidavit is submitted by Aristizabal to refute any of the facts asserted by plaintiff.
"Where . . . a creditor seeks summary judgment upon a written guaranty, the creditor need prove no more than an absolute and unconditional guaranty, the underlying debt, and the guarantor's failure to perform under the guarantee" ( see North Fork Bank Corp. v Graphic Forms Assoc., Inc ., 36 AD3d 676, 676 ; Kensington House Co. v Oram, 293 AD2d 304, 304-305; see also City of New York v Clarose Cinema Corp., 256 AD2d 69, 71). Each of the Guarantees is unconditional and explicit in its terms providing that Aristizabal is absolutely liable for the full performance of all monetary obligations of Giromas under the Trust Agreements ( see Kensington House Co., 293 AD2d at 305; City of New York, 256 AD2d at 71; BNY Fin. Corp. v Clare, 172 AD2d 203, 204). Thus, the personal Guarantees executed by Aristizabal bound her personally and individually for Giromas' debts ( see National Westminister Bank USA v Sardi's, Inc., 174 AD2d 470, 471). If plaintiff is able to prove a debt against Giromas, Aristizabal will also be liable.
With respect to the claim for attorney's fees by plaintiff, while Mr. Cruz-Lopez, Esq. conclusorily asserts that defendants dispute that attorney's fees are owed to plaintiff in this matter, paragraph 10 (A) of the Money Order Agreement and paragraph 7 (a) of the MOP Agreement specifically authorize and permit such recovery by providing that Giromas "shall reimburse . . . [plaintiff] . . . from all losses, claims, demands, [and] actions . . . including . . . reasonable attorney's fees, . . . resulting . . . from actions or omissions . . . by [Giromas] . . . arising out of the violation of this Agreement." Paragraph 9 (A) of the Wire Transfer Agreement similarly provides that Giromas "shall reimburse . . . [plaintiff] . . . from all losses, claims [and] actions, including . . . reasonable attorney's fees, resulting . . . from [Giromas'] failure to adequately or timely perform any duties or obligations under this Agreement." In addition, as noted above, Aristizabal, under the Guarantees, expressly agreed "to indemnify [plaintiff] against any and all . . . fees . . . (including interest and attorneys' fees) . . . by reason of or related to any failure by [Giromas] to perform the [Trust] Agreement[s]." Thus, if plaintiff prevails in the action, it will be entitled to recover attorneys' fees.
This matter is set down for a pre-trial conference at 2:30 p.m. on March 18, 2009 in Commercial Division I. Counsel are advised to consult The Rules of The Commercial Division in preparation for such appearance. The parties are directed to appear by a principal.
This constitutes the decision and order of the court.