New York Community Bank v Ari Chitrik

Annotate this Case

Download PDF

New York Community Bank v Ari Chitrik 2011 NY Slip Op 33522(U) December 16, 2011 Supreme Court, Nassau County Docket Number: 18180-10 Judge: Timothy S. Driscoll Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. -------._---._-.._----._----------------- [* 1] SUPREME COURT-STATE OF NEW YORK SHORT FORM ORDER Present: HON. TIMOTH S. DRISCOLL Justice Supreme Court NEW YORK COMMNITY BANK, ----------x TRISPART: NASSAU COUNTY Plaintiff, Index No: 18180- -against- Motion Seq. No: 4 Submission Date: 1117/11 AR CHITRI AlA AARON CmTRI PUREC AND SHAY A BOYMELGREEN JESHA YARU BOYMELGREEN, AlA . Defendants. ---------------------------------------------------------------J( Papers Read on this Motion: Notice of Motion, Attorney s Statement, Affidavit in Support and Exhibits... This matter is before the court on the motion by Plaitiff New Plaitiff' or York Communty Ban "NYCB"), fIed November 1 2011 and submitted November 7, 2011. For the reasons set fort below, the Cour grants Plaitiff s motion to the extent that the Cour grants Plaintiff judgment agains Defendant Ar Chitrik a/a Aaron Chitr on the fist cause of action in the Verified Complaint in the principal sum of$6, 114 930, plus interest at the Contract Rate and Default Rate, late fees and the cost of collection including reaonable attorney s fees to be deterined at an inquest. BACKGROUND A. Relief Sought Plaintiff moves for an Order, pursuant to CPLR 3215, granting Plaitiff a default judgment against Defendat Ar Chitrk a/a Aaron Chitrk (" Chitri" Chitr has not appeared, and has not submittd an opposition or other response to [* 2] Plaintiffs motion. B. The Pares ' HistolY This action was the subject of a prior decision of the Cour dated July 11 2011 ("Prior Decision ). In the Prior Decision , the Court denied Plaintiffs motion for a defauJtjudgment and directed counel for Plaintiff and counsel for chitr, or Chitrik himself ifhe was unrepresented by counsel , to appea before the Cour for a Preliinar September 7, 2011 at 10:30 a. m. The Cour held fuer Conference tht, should Chitrik fail to appear as directed, the Cour would entertain an imediate application by Plaiti for renewal or rearguent of its motion. In the Prior Decision, the Court outlined in detail the allegations and afdavit in support and the Cour incorporates the Prior Decision herein by reference. As noted in the Pror Decision, Plaitiff seeks judgment against Defendant Chitrk pursuat to a revolving business line of credit note dated November 13, 2006 in the maimum pricipal sum of$6 500 000 'Note'' ), as amended, plus interest, late fees and costs and fees incured in collection of the Note. The Complaint contas thee causes of action against Chitrk. The fist cause of action sounding in breach of contract, alleges that, as of September 9, 2010 , Chitrik owed a tota sum of 680, 690. 04 in principal, unpaid interest at the Contract Rate and Default Rate, and late charges on the Note. Plaitiff consisting of principal in the sum of $6 114 930 , plus interest at the Contract Rate and Default Rate, late fees and the cost of seeks damages agaist Chitrk collection including reasonable attorney s fee. The second and thd causes of action seek similar relief against Chitrk under the theories of money lent and unjust enrichment. The Complait, which includes copies of the Note , modication agrements and Guarty, is veried by Douglas H. Ort, a Vice President ofNYCB. In addition, Anthony E. Guinyard Guinyard"), a vice president of New York Community Bancorp, Inc. , the parent company of NycB , provided an Affdavit in Support in which he afrmed the truth of the allegations in the Complaint regarding the Note and Chitrk' s failure to make required payments under the Note. Plaintiff ha submittd Guinyard' s also outlned Plaitiffs service of afdavit in support of the instant motion. The Pror the Complait on Chitrk and his failur to serve an Decision answer to the Complaint. In support of the instat motion, Plaintiffs counel affrms tht Prior Decision on July 19, 20 II , as reflected by the afdavit he served a copy of the of servce provided (Ex. 8 to Krause [* 3] Af. in Supp. ). Plaintiffs counel affrms, fuer that chitrk failed to appear at the Preliminary Conference as directed by the Cour, has failed to answer or make any motion with respect to the Complaint, and has not requested any extenion of his time to answer or repond to the Complaint. The Pares ' Positions C. Plaitiff submits that it has demonstrated its right to a default judgment by establishing its servce of the Complait on Chitrik and his failure to anwer in a tiely demonstratig Chitr' s maner, and faiure to make requied payments under the Note. Moreover, Chitrik failed to appear as directed by the Cour in the Prior Decision , has persisted in his failure to anwer or make any motion with respect to the Complaint, has not requested any extension of his tie to answer or respond to the Complait and has submitted no response to Plaintiffs motion. RULING OF TH COURT Default Judipent 3215(a) permits a par to seek a default judgment agaist CPLR a Defendant who fails to make an appearance. The moving par must present proof of service of the sumons and the complait, afdavits seting forth the facts constituting the claim, the default, and the amount due. CPLR 3215 (f); par must mae a Allstate Ins. Co. v. Austin 48 A.D. 3d 720 (2d Dept. 2008). The moving prima facie showing of a cause of action against the defaulti par. Joosten v. Gale 129 A.D. 2d 531 (1st Dept. 1987). B. Promissory Note To establish a prima facie case on a promissory note, a plaintiff must establish the existence of the instrument and the defendant' s failur to make payment pursuant to the term of the instrent Cutter Bayview Cleaners, Inc. v. Spotless Shirts, Inc. 57 A.D. 3d 708 (2d Dept. 2008); Mangiatordi v. Maher 293 AD. 2d 454 (2d Dept. 2002). Once plaintiff has met its burden, the defendant must then estblish concerng a bona fide defense. Northport Car Wash, by admssible evidence the existence of a triable issue Cutter Bayiew Cleaners, Inc. Inc. v. Northport Car Care LLC, v. Spotless Shirts, Inc., supra; 52 A.D. 3d 794 (2d Dept. 2008). C. Breach of Contrct To establish a cause of action for breach of contract, one must demonstrate: 1) the existence of a contract between the plaintiff and defendant, 2) consideration, 3) performance by the plaintiff, 4) breach by the defendat, and 5) damages resultig from the breach. Furia v. [* 4] Furia 116 A.D. 2d 694 (2d Dept. 1986). See also JP Morgan Chase 802 (2d Dept. 2010) (complaint sufcient plaintiffs performance under contrt, citing. where v. J.H Electric 69 A.D.3d it adequately alleged existence of contract defendat' s breach of contract and resulting daages). inter alia, Furia, supra. Counel Fees D. Attorneys ' fees may be awarded pursuant to the terms of a contract only to an extent that is reasonable and waranted for servces actuly rendered. Kamco Supply Corp. v. Annex 261 AD. 2d 363 (2d Dept. 1999). Provisions or stipulations in contracts for Contracting Inc., payment of attorneys ' fees in the event it is necessar to resort to aid of counsel for enforcement Roe v. Smith 278 N. Y. 364 (1938); or collection are valid and enforceable. Westchester v. Pisani 58 A. National Bank of 2d 597 (2d Dept. 1977). The amount of attorneys ' fees awarded pursuant to a contractu provision is withn the cour' s sound discretion, based upon such factors as time and labor requied. v. 33 AD. 3d 986 (2d Dept. 2006); Canarsie Hotel Corp. Dept. 1985). Legal fees are awarded on a sumarly. See Simoni v. Matter ofUry, quantum meruit Time-Line, Ltd SO/Bluestar, LLC 108 A. 2d 816 (2d basis and canot be deteined Borg v. Belair 272 AD. 2d 537 (2d Dept. 2000); Ridge Development Corp. 270 A.D. 2d 377 (2d Dept. 2000). When the cour is not provided with sufcient informtion to make an informed assessment of the value of the legal serces, a . hearing must be held. Bankers Fed Sav. Bank v. OffW. Broadway Developers, 224 A.D. 2d 376 (1st Dept. 1996). E. Application of these Principles to the Instant Action The Cour grants Plaintiffs motion to the extent that the Cour grts Plaitiff judgment againt Defendant Ari Chitrik a/a Aaron Chitr on the fIrst cause of acon in the Veried Complaint in the principal sum of$6 114 930, plus interest at the Contract Rate and Default Rate, late fees and the cost of collection including reasonable attorney s fees to be determined at an inquest. Plaintiff has demonstrated its right to judgment by providing proof of service of the Complaint on Defendant Chitrk. and providing an afdavit establishing Chitrk' s failur to make and supportng documentation required payments under the Note. entitled to collection costs, including reasonable attrney s fees In addition, Plaitiff is incUl in enforcing its rights under the Note. The Cour declines to award Plaintiff judgment on the second and thrd causes of action in the Complait which seek identica relief, under different theories , as is sought in the [* 5] first cause of action. In light of the foregoing, it is hereby: ORDERED, that the motion of Plainti New York Community Ban for a default judgment against Defendant Ar Chitrik a/a Aaron Chitrk is granted to the extent that Plaitiff is awarded judgment agaist Defendant Ari Chitrik ala Aaon chitrk on the first cause of action in the Verified Complaint in the principal sum of$6, 114, 930 , plus interet at the Contract Rate and Default Rate, late fees and the cost of collection including reasonable attorney s fees to be determed at an inquest. ; and it is fuher ORDERED, tht ths matter is respectfuy referred to Specia Referee Fran Schellace (Room 060 , Special 2 Couroom , Lower Level) to hear and determine al relatig to the computation of interet , N. issu late fees and collection costs , including attorney s fees, to . be awarded to Plaintiff on Januar 25, 2012 at 9:30 a. ; and it is furter. ORDERED, that Plaintiff shall serve upon Defendat Ari Chitr AI A Aaron chitrik by certifed mail retu recipt requested, a copy of this Order with Notice of EntI, a Notice of Inquest or a Note of Issue and shall pay the appropriate filing fees on or before Janua 11 , 2012; and it is fuer ORDERED, that the County Clerk, Nassau County is directed to enter a judgment in favor of Plaintiff New York Communty Ban and against Defendant Ari Chitrk a/a Aaron Chitrk in accordance with the decision of the Special Referee. All matters not decided herein are hereby denied. This constitutes the decision and order of the Cour. ENTER DATED: Mieola, NY December 16, 2011 J.S. ENTE Pcr DEC 21 2011 COUNt NASSAU COUNTY CLERK' S Off' It

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.