Opinion
02-14-2024
VALLEY NATIONAL BANK, Plaintiff-Respondent, v. TDS CAB CORP., et al., Defendants, Dorothy Statharos et al., Defendants-Appellants.
Fox Rothschild LLP, New York (Micheal R. Lieberman of counsel), for appellants. Zeichner Ellman & Krause LLP, New York (Bruce S. Goodman of counsel), for respondent.
Fox Rothschild LLP, New York (Micheal R. Lieberman of counsel), for appellants.
Zeichner Ellman & Krause LLP, New York (Bruce S. Goodman of counsel), for respondent.
Renwick, P.J., Webber, Kennedy, Pitt–Burke, Michael, JJ.
Judgment, Supreme Court, New York County (Jennifer G. Schecter, J), entered December 22, 2022, awarding a money judgment in plaintiff’s favor, and bringing up for review an order, same court and Justice, entered November 14, 2022, which, to the extent appealed from as limited by the briefs, granted plaintiff summary judgment against defendant guarantors Dorothy Statharos and City Transport Mgmt., Inc., unanimously affirmed, without costs. Appeal from aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
[1] Plaintiff established prima facie entitlement to summary judgment by submitting documentary evidence of the existence of the loans and guaranties as well as defendant guarantors’ failure to pay on those loans (see Cooperatieve Centrale Raiffeisen–Boerenleenbank, B.A., "Rabobank Intl.," N.Y. Branch v. Navarro, 25 N.Y.3d 485, 492, 15 N.Y.S.3d 277, 36 N.E.3d 80 [2015]). Contrary to defendants’ contention, the documents plaintiff submitted were properly authenticated by the affidavit of its vice president (see IRB–Brasil Resseguros S.A. v. Eldorado Trading Corp. Ltd., 68 A.D.3d 576, 577, 891 N.Y.S.2d 362 [1st Dept. 2009]). The vice president attested that she verified the documents based on either her personal knowledge or a review of plaintiff’s books and records, which were in her possession and made at or near the time of the event in question or transmitted in the regular practice and ordinary course of business from someone with knowledge of the transaction. She also attested that she had "personal knowledge of the manner in which the records were kept and use[d] them in the regular course of [her] business" (see DeLeon v. Port Auth. of N.Y. & N.J., 306 A.D.2d 146, 146, 761 N.Y.S.2d 54 [1st Dept. 2003]). Moreover, this Court has held that a plaintiff may rely on an original loan file prepared by its assignor if it relies on those records in its regular course of business (see Landmark Capital Invs., Inc. v. Li–Shan Wang, 94 A.D.3d 418, 418–419, 941 N.Y.S.2d 144 [1st Dept. 2012]; see also Merrill Lynch Bus. Fin. Servs. Inc. v. Trataros Constr., Inc., 30 A.D.3d 336, 337, 819 N.Y.S.2d 223 [1st Dept. 2006], lv denied 7 N.Y.3d 715, 826 N.Y.S.2d 180, 859 N.E.2d 920 [2006]).
[2, 3] As to defendants’ rescission/reformation defense based on mutual mistake, they point to a notice of claim, filed on February 20, 2020, by the New York Attorney General’s office against the City of New York, alleging that the City had a direct role in inflating the value of the taxi medallions (the collateral securing the loans) for its own benefit as well as that of other select individuals and entities. The argument is unavailing, as an unconditional guarantor, as in the case of defendants here, cannot allege a mutual mistake defense regarding the underlying contracts (see Deco Towers Assoc, LLC v. Fisch, 219 A.D.3d 1245, 1247, 197 N.Y.S.3d 129 [1st Dept. 2023]).
Defendant guarantors’ general argument that summary judgment is premature is also unavailing (see Tavarez v. Castillo Herrasme, 140 A.D.3d 453, 454, 31 N.Y.S.3d 871 [1st Dept. 2016]).