Opinion
Index No. 653146/2021 MOTION SEQ. No. 001
12-15-2023
MEDALLION BANK, Plaintiff, v. CHOPPER TAXI INC. and MEIR YAKUEL, Defendants.
Unpublished Opinion
MOTION DATE 08/31/2021
SUPPLEMENTAL DECISION + ORDER ON MOTION
HON. LOUIS L. NOCK JUSTICE
The following e-filed documents, listed by NYSCEF document numbers (Motion 001) 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, and 56 were read on this motion for SUMMARY JUDGMENT.
This decision supplements the prior order of the court on this motion, in which the court denied the motion without prejudice to renewal upon submission of a Statement of Material Facts pursuant to the Uniform Rules for Trial Courts (22 NYCRR) § 202.8-g (NYSCEF Doc. No. 47). Plaintiff now submits such a Statement. Thus, the court now turns its attention to the balance of the motion. Upon the foregoing documents, the motion is granted for the reasons set forth in the moving and reply papers (NYSCEF Doc. Nos. 16, 21, 23, 45) and the exhibits attached thereto, in which the court concurs, as summarized herein. The court assumes familiarity with the facts and circumstances of this matter as set forth in the prior order.
Summary judgment is appropriate where there are no disputed material facts (Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]). The moving party must tender sufficient evidentiary proof to warrant judgment as a matter of law (Zuckerman v City of N. Y., 49 N.Y.2d 557, 562 [1980]). "Failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986] [internal citations omitted]). Once a movant has met this burden, "the burden shifts to the opposing party to submit proof in admissible form sufficient to create a question of fact requiring a trial" (Kershaw v Hospital for Special Surgery, 114 A.D.3d 75, 82 [1st Dept 2013]). "[I]t is insufficient to merely set forth averments of factual or legal conclusions" (Genger v Genger, 123 A.D.3d 445, 447 [1st Dept 2014] [internal citation omitted]). Moreover, the reviewing court should accept the opposing party's evidence as true (Hotopp Assocs. v Victoria's Secret Stores, 256 A.D.2d 285, 286-287 [1st Dept 1998]), and give the opposing party the benefit of all reasonable inferences (Negri v Stop & Shop, 65 N.Y.2d 625, 626 [1985]). Therefore, if there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders v Ceppos, 46 N.Y.2d 223, 231 [1978]).
Here, plaintiff has established prima facie entitlement to summary judgment on the promissory note and security agreement executed by defendants by submission of the note and defendants' failure to pay (Nunez v Channel Grocery & Deli Corp., 124 A.D.3d 734, 734-35 [2d Dept 2015]), as well as the security agreement, evidence of plaintiff s performance thereunder and defendants' breach thereof, and plaintiffs damages (Harris v Seward Park Housing Corp., 79 A.D.3d 425 [1st Dept 2010]). Pursuant to the terms of the security agreement, plaintiff may pursue a money judgment for failure to pay the note upon its maturity, as well as take possession of the collateral (Security Agreement, NYSCEF Doc. No. 25, ¶ 7). Further, plaintiffs remedies under the security agreement are cumulative, "and shall be in addition to all other remedies in favor of [plaintiff] existing at law or in equity" (id. ,¶11). Defendant Chopper Taxi, Inc., executed a UCC Financing Statement in favor of plaintiff, in which the collateral was defined as Medallions #4M24 and #4M25, the taxicabs associated with the Medallions, and various other equipment and property related to the taxicabs and the use of the Medallions (UCC Financing Statement, NYSCEF Doc. No. 27).
In opposition, defendants fail to raise a triable issue of fact. Defendants' allegations of predatory lending and unclean hands are conclusory and unsupported by any admissible evidence, nor do defendants suggest that facts relevant to the note and security agreement "essential to justify opposition may exist but cannot [now] be stated" (CPLR 3212[f]; Morales v Amar, 145 A.D.3d 1000, 1003 [2d Dept 2016] [The "mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying the motion"]). Further, defendants cite no authority or provision of the note or security agreement requiring plaintiff to renegotiate the terms of the loan, nor do they provide sufficient evidence of which payments are not being appropriately credited to their account.
Defendants' invocation of impossibility of performance is similarly unavailing. "Impossibility excuses a party's performance only when the destruction of the subject matter of the contract or the means of performance makes performance objectively impossible. Moreover, the impossibility must be produced by an unanticipated event that could not have been foreseen or guarded against in the contract" (Kel Kim Corp. v Central Mkts., 70 N.Y.2d 900, 902 [1987]). "[W]here impossibility or difficulty of performance is occasioned only by financial difficulty or economic hardship, even to the extent of insolvency or bankruptcy, performance of a contract is not excused" (407 E. 61st Garage, Inc. v Savoy Fifth Ave. Corp., 23 N.Y.2d 275, 281 [1968]; see also 558 Seventh Ave. Corp. v Times Square Photo Inc., 194 A.D.3d 561, 561-62 [1st Dept 2021] [holding that reduced revenues due to the COVID-19 pandemic did not render performance impossible]). To the extent that defendant cites the ongoing COVID-19 pandemic (distinct of "economic hardship" in general) and states she was unable to operate her taxicab, the court notes that Executive Order 202.6 deemed as essential all businesses under the category "transportation infrastructure," and such businesses were allowed to continue to operate without restriction (9 NYCRR 8.202.6). "That defendants] may have counted on the continued viability of the taxicab market to repay the loan is not a viable affirmative defense nor is it an issue of fact" (Medallion Bank v Makridis, 2021 NY Slip Op 30033[U], 4-5 [Sup Ct, NY County 2021]).
Accordingly, it is hereby
ORDERED that the motion for summary judgment is granted; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment in favor of plaintiff and against defendants, jointly and severally in the principal amount of $994,474.17, plus accrued interest in the amount of $47,223.71 as of August 19, 2021, with additional interest on the principal amount at the rate of $89.78 per day from August 20, 2021, through entry of judgment, as calculated by the Clerk, together with costs and disbursements as taxed by the Clerk upon submission of an appropriate bill of costs, plus attorneys' fees of $6,871.00 as provided by the terms of the security agreement (NYSCEF Doc. No. 26, f 12); and it is further
ADJUDGED and DECLARED that plaintiff is entitled to possession of the Medallions described in the UCC Financing Statement; and it is further
ORDERED that defendants are directed to turn over the Medallions to plaintiff within 30 days of the date of entry of this order and judgment; and it is further
ORDERED that the Sheriff of any County of the State of New York in which the Medallions are located, including but not limited to the County of Queens at 42-05 12th Street, Long Island City, New York 11101, upon receipt of a certified copy of this Order and Judgment and payment of proper fees, is directed to break open, enter, search for, and seize the Medallions and deliver same to plaintiff.
This constitutes the supplemental decision and order of the court.