Opinion
600712/07.
May 18, 2009.
On January 5, 2007, plaintiff filed a judgment by confession against non-party Nubian Heritage Direct, LLC ("NHD") and judgment was entered against NHD in the amount of $1,042,373.26 (the "judgment") based upon NHD's default under a loan and security agreement entered into between plaintiff and NHD. The defendant herein is the guarantor of NHD's obligations under the loan and security agreement. Plaintiff commenced this action against defendant to enforce the guaranty.
Plaintiff now moves for summary judgment on its complaint in this action. Defendant opposes the motion and cross-moves for leave to conduct a third party deposition. Plaintiff does not oppose the cross-motion or submit any reply papers in further support of its motion.
On a motion for summary judgment to enforce written guaranties, the creditor is required to prove absolute and unconditional guaranties, the underlying debt, and the guarantors' failure to perform under the guaranties (see City of New York v. Clarose Cinema Corp., 256 A.D.2d 69 [1st Dept. 1998]). In support of the motion plaintiff submits copies of the documents evidencing the loan (Exh. A to motion), the guaranty signed by the defendant (Exh. C to motion) and NHD's confession of judgment (Exh. D to motion). On this record, plaintiff has established its entitlement to summary judgment on its prima facie case, which defendant has not sufficiently refuted, having proffered only an attorney's affirmation in opposition to the motion and a verified answer (Exh. F to motion) which is, in essence, a mere general denial containing no affirmative defenses.
While the moving party has the initial burden of proving entitlement to summary judgment ( Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985), once such proof has been offered, in order to defend the summary judgment motion, the opposing party must "show facts sufficient to require a trial of any issue of fact." CPLR 3212(b); Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980); Freedman v. Chemical Const. Corp., 43 N.Y.2d 260 (1977); Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065 (1979). Further, "[w]here the moving party has demonstrated its entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action . . . and the submission of a hearsay affirmation by counsel alone does not satisfy this requirement." Id., 49 N.Y.2d at 560. See also, Vermette v. Kenworth Trucking Co., a Div. of Paccar, Inc., 68 N.Y.2d 714 (1986); Marinelli v. Shifrin, 260 A.D.2d 227, 228-229 (1st Dept. 1999)("It is well settled that 'the opposing affidavit should indicate that it is being made by one having personal knowledge of the facts' [citation omitted] and, therefore, the affidavit of counsel is of no probative value in opposing a motion for summary judgment [citation omitted]"); Spearmon v. Times Square Stores Corp., 96 A.D.2d 552, 553 (2nd Dept. 1983) (opposing affidavit by an attorney is insufficient as a matter of law).
Defendant argues that a triable issue exists with regard to the computation of the amount owed, and seeks post-note of issue discovery (to wit, a non-party deposition). Defendant contends that it learned that Colson Services Corp. ("Colson") provided accounting services to plaintiff in connection with the subject loan. This was revealed in plaintiffs May 8, 2008 deposition testimony. At an unspecified time thereafter, defendant received a statement of account from Colson dated July 15, 2008 (Exh. C to cross-motion) which indicated that NHD owed a significantly lower amount (approximately $300,000) on the loan.
However, the amount of NHD's debt to plaintiff, which defendant unconditionally guaranteed, was established when the judgment was entered on January 5, 2007. No action has been taken in the intervening two years to vacate the judgment. It does appear from plaintiffs motion that plaintiff received payments from NHD after the judgment was entered. As a result, the judgment has been partially satisfied and plaintiff seeks judgment against defendant as guarantor in that amount, which the court hereby grants. For the foregoing reasons, it is hereby
ORDERED that plaintiffs motion is granted and defendant's cross-motion is denied; and it is further
ORDERED that the Clerk is directed to enter judgment in favor of plaintiff, Upper Manhattan Empowerment Zone Development Corporation, and against defendant, Richelieu W. Dennis, in the amount of $1,002,508.48 (representing $981,744.28 as the balance of the loan principal plus $20,764.20 as the balance of loan interest), together with interest at the statutory rate from January 5, 2007, together with costs and disbursements to be taxed by the Clerk upon submission of an appropriate bill of costs.
The foregoing is the decision, order and judgment of this court. Copies of this decision, order and judgment have been sent to counsel for plaintiff and defendant.