Opinion
Index No. 525485/2021
05-16-2022
LIBERTAS FUNDING LLC, Plaintiff, v. JM3 CONSTRUCTION LLC and JOSEPH REVELLO, LAWRENCE WILLIAM WECKER, Defendants,
Unpublished Opinion
PRESENT: HON. LEON RUCHELSMAN JUDGE
DECISION AND ORDER
Leon Ruchelsman, Judge
The plaintiff has moved seeking summary judgement pursuant to CPLR §3212 arguing there are no questions of fact the defendants owe the money sought. The defendants oppose the motion. Papers were submitted by the parties and after reviewing all the arguments this court now makes the following determination.
On April 1, 2021 the; plaintiff a merchant cash advance funding provider entered into a contract with defendants located in. New Jersey. Pursuant to the agreement the plaintiff purchased $1,310,000 of defendant's future receivable for $1,000,000. The parties further agreed that the plaintiff would be able to obtain certain daily amounts until the amount of $1,310,000 was fully paid. Moreover, the defendants executed a guaranty and a security agreement. The defendants stopped remittances in September 2021 and still owed $900,888.76, This action was commenced and now the plaintiff seeks summary judgement arguing there can be ho questions of fact the defendants owe the amount outstanding and judgement should be granted in their favor. The defendants oppose the motion.
Conclusions of Law
Where the material facts at issue in. a case are in dispute summary judgment cannot be granted (Zuckerman v. City of Hew York, 49 N.Y.S.2d 557, 427 N.Y.S.2d 595 [1980]). Generally, it is for the jury,, the trier of fact to determine the legal cause of any injury, however, where only one conclusion may be drawn from the facts then the question of legal cause may be decided by the trial court as a matter of law (Marino v. Jamison, 189 A.D.3d 1021, 136 N.Y.S.3d 324 [2d Dept., 2:021).
The defendant Lawrence Wecker has submitted an affidavit wherein he asserts that he did not sign the merchant agreement and did not sign the two addendums. Thus, there can be no summary determination he has guaranteed any payments. That denial compels the only other reasonable conclusion that can be drawn, namely that his signatures have been forged. This is true because beneath the signature which Mr. Wecker denies is his are the printed words "Larry Wecker" and underneath that is: another notation that states ""Name: Lawrence William Wecker" (see., Agreement of Sale of Future Receipts, page 12). Likewise, the two addendums, also contain printed language that states "Larry Wecker" and "Owner:Lawrence William Wecker" (see, Addendums, pages, 13 and 14). Thus; essentially, Wecker is asserting that despite the printed notations indicating his name, he never signed the documents.
However, it is well settled that the bare self-serving claim that a document was forged is insufficient to raise any questions of fact (Brown Park I, LP v. Imperial Development and Construction Corp., 65 A.D.3d. 510, 882 N.Y.S.2d 919 [2d Dept., 2009]). As the Court of. Appeals stated in Banco Popular North America v. Victory Taxi Management Inc., 1 N.Y.3d 381, 774 N-YS2d 480 [2004] "something more than a bald assertion of forgery is required to create an issue of fact contesting the authenticity of a signature. Here, there is an absence of factual assertions supporting a claim of forgery..." (id). Of course, where a party presents more than conclusory evidence that the signature is a forgery then questions of fact have been raised and there can be no summary determination of the lawsuit (see, Diplacidi. v. Cruder, 135 A.D.2d 395, 522 N.Y.S.2d 1 [1st Dept., 1987]).
In this case, Mr. Wecker has provided sufficient evidence raising questions whether the digital signatures Of Mr. Wecker were authorized by him. There is no dispute the: digital signatures of Wecker and Rovello were produced within moments of each other from the same computer at the defendant's office. While Mr. Wecker did not categorically deny he was not present at the office that day he did assert he was "almost always" not in the office (see, Affidavit of Lawrence Wecker, ¶4). Furthermore, the proximity of time between all the digital signatures from the same computer and Mr. Wecker's denial that he ever authorized his digital signature raise: questions of fact whether he can be bound by the guarantees digitally signed. However, : no questions of fact are raised1 whether the signature Of Mr. Revello, now deceased, ; guarantees the. debt since there have, been no legitimate questions raised whether he in fact did not sign the above noted documents.
Therefore, legitimate questions of fact have been raised concerning defendant Wecker and consequently the motion seeking summary judgement as to him is denied.
So ordered.