M&T Bank Corp. v Cruse

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M&T Bank Corp. v Cruse 2012 NY Slip Op 30524(U) February 23, 2012 Sup Ct, Nassau County Docket Number: 8247/11 Judge: Denise L. Sher 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] SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Court Justice TRIAL/IAS PART 31 NASSAU COUNTY M&T BANK CORPORATION Index No. : 8247/11 Motion Seq. No. : 01 Motion Date: 02/23/12 Plaintiff - against - DEANA CRUSE Defendant. The followin papers have been read on this motion: Papers Numbered Notice of Motion Affdavits and Affidavit in O osition Pro se Reply Affidavit Exhibits Upon the foregoing papers , it is ordered that the motion is decided as follows: Plaintiff moves , pursuant to CPLR g3212 , for an order granting summar judgment in its favor and against defendant. Defendant pro se opposes the motion. This is an action for breach of contract arsing out of a breach of a certain loan obligation by defendant to plaintiff. Plaintiff commenced the action with the filing of a Sumons and Verified Complaint on or about June 3 , 2011. Issue was joined on or about July 5 2011. Plaintiff submits that , on or about June 20 , 2006 , defendant executed a retail installment contract pursuant to which plaintiff agreed to extend to her a loan in the amount of $40 817.44 and she agreed to repay that amount in accordance with the terms of said contract. See Plaintiff s [* 2] Nowicki Affidavit in Support Exhibit A. Plaintiff argues that defendant breached the terms of said contract by failng and/or refusing to make payments in accordance with the terms of the contract. Based upon defendant's breach , on March 7 2011 counsel for plaintiff sent a letter to See defendant demanding repayment of her debt. Plaintiffs Nowicki Affidavit in Support Exhibit B. Plaintiff contends that defendant did not pay her debt in response to counsel' s letter thus necessitating the instant lawsuit. Plaintiff claims that , as a result of defendant' s breach of contract , as of October 12 2011 , it has been damaged in the amount of$21 007. , which consists of$13 126. 54 in principal , accrued interest of$2 251.71 and late fe s of$5 628. 96. Plaintiff fuher contends that it is entitled to reasonable attorneys ' fees and costs for bringing this action. Plaintiff argues that defendant canot raise a triable issue of fact as she admitted her breach of contract in her two affirmative defenses. It is well settled that the proponent of a motion for sumar showing of entitlement to judgment as a matter of law by providing suffcient prima facie See Silman evidence to demonstrate the absence of material issues of fact. Century- Fox Film Corp. 3 N. Y.2d Hospital, judgment must make a 395 , 165 N. Y.S. 2d 68 N. Y.2d 320 508 N. Y.S.2d 923 (1986); 557 427 N. S.2d 595 (1980); Bhatti v. Alvarez 498 (1957); Zuckerman v. Twentieth v. v. Prospect City of New York 49 N. Y.2d Roche 140 A.D.2d 660 528 N. Y.S. 2d 1020 (2d Dept. 1988). To obtain summar judgment , the moving par must establish its claim or defense by tendering suffcient evidentiar proof, in admissible form , suffcient to warant the cour , as a matter oflaw , to direct judgment in the movant's favor. Associated Fur Mfrs. , Inc. 46 N. Y.2d 1065 416 N. See Friends of Animals, Inc. 2d 790 (1979). Such evidence include deposition transcripts , as well as other proof anexed to an attorney s affirmation. may See [* 3] v. Olan CPLR g 3212 (b); Farrell Lines Inc. 2d 884 (1985). 489 N. 1092, showing is demonstrated , the burden then shifts to the prima facie If a sufficient 64 N. Y.2d non-moving part to come forward with competent evidence to demonstrate the existence of a material issue of fact , the existence of which necessarily precludes the granting of See Zuckerman judgment and necessitates a trial. supra. Y.S.2d 595 (1980), v. summar City of New York 49 N. Y.2d 557, 427 When considering a motion for sumar judgment , the function of the cour is not to resolve issues but rather to determine if any such material issues of fact exist. (1957), supra. issue. v. See Silman Twentieth Century- Fox Film Corp. 3 N. Y.2d 395, 165 N. Y.S.2d 498 Mere conclusions or unsubstantiated allegations are insufficient to raise a triable See Gilbert Frank Corp. v. Federal Ins. Co. 70 N. Y.2d 966 525 N. S.2d 793 (1988). Furher , to grant summar judgment , it must clearly appear that no material triable issue of fact is presented. The burden on the court in deciding this type of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist. See Barr v. Albany County, 50 N. Y.2d 247 428 N. Johnson 147 A.D. 2d 312 543 N. 2d 665 (1980); Daliendo 2d 987 (2d Dept.989). Based upon the evidence and legal argument provided in their motion as detailed above the Cour finds that plaintiff has established prima facie entitlement to judgment as a matter of law. prima facie As previously stated , since plaintiff demonstrated a sufficient showing, the burden shifts to defendant to come forward with competent evidence to demonstrate the existence of a material issue of fact , the existence of which necessarily precludes the granting of sumary judgment and necessitates a trial. See Zuckerman v. City of New York, supra. ," [* 4] In her pro se Affidavit in Opposition , defendant states I never intentionally bought a car. I was retired , only receiving a social security check. I never gave any personal information about myself, never saw a car or picked one out. Never had keys , or drove it off the lot. Never spoke to anyone other than the dealer that sent someone to my house to pick me up to ' co-sign and return me home. It was more than a month before I knew what had happened. I have never driven the car. I am a senior citizen. Three people took advantage of me. Duane Wallace , the dealership and M&T Bank. All ofthese benefitted from my stupidity. I never saw anyone to interview me. My name is the only one on the paper , yet I am the victim! I canot really defend myself properly. I can t find an attorney. I don t have money & legal aide said it would take too long. I am on food stamps and HEAP. I am unable to get a paid attorney. At the dealership, there were no figures on the papers. M&T Bank is not tellng the truth! This is fraud! Wil you please allow an oral argument with or in front of you. I can explain myself better. I am being taken advantage of. In reply, plaintiff submits that Ms. Cruse alleges that she was defrauded into the Contract that she signed on June 20 , 2006. Ms. Cruse s original loan was for the amount of $40 817.44. The cash price of the vehicle she purchased was $42 032.44. She put a $1 500 cash down payment on the automobile.... After applying payments and auction proceeds of the repossessed automobile , Ms. Cruse now owes the principal amount of 13 126. 54 (sic), plus late fees , accrued interest , and attorney fees. Despite the fact that Ms. Cruse believes she is the victim of fraud , she has never raised this issue previously. She has not made a complaint to the New York State Attorney General , sought to rescind her contract , or fied a police report. She admits signing the Contract. In her opposition , Ms. Cruse states that one of the people who defrauded' he (sic) was Duane Wallace. Upon information and belief, Duane Wallace is Ms. [* 5] Cruse she signed this loan. The terms ofthe Contract are clear and (sic) s son for who unambiguous. Ms. Cruse signed a retail installment contract for the purchase of an automobile which was registered in her name. She financed the amount of $40 817.44. She paid $1 500 as a down payment." It is well settled that " (tJhe signer of a written agreement is conclusively bound by its See terms unless there is a showing, absent here , of fraud , duress or some other wrongful act." v. Columbus Trust Co. Campolo 110 AD.2d 616 , 487 N. Y.S.2d 105 (2d Dept. 1985). A person 816 (2d Dept. 1991). Further , a par 465 , 576 N. Y.S.2d will not be excused from an agreement by a failure or See Huang even a claimed inability to read it. Petrou 178 A. D.2d v. See Lejkowski is presumed to have read what he signs. v. Cheng, 182 AD. 2d 600 583 N.Y. S.2d 370 (1 Dept. 1992). Thus , the law presumes that one who is capable of reading something has read the See Marine document which she/he executed , and is conclusively bound by the terms thereof. v. Midland Bank, NA. See also Sofio v. Embassy East, Inc. Hughes 162 AD. 2d 518 160 AD. 2d 420 553 N. Y.S. 2d 767 (1 556 N. Y.S.2d pro se While defendant alleged fraud in her st Dept. 1990). 717 (2d Dept. 1990). Affdavit in Opposition , she fails to provide any evidence of how she was in fact defrauded. Her signatue appears on the subject contract. See Plaintiffs Nowicki Affidavit in Support Exhibit A She provided a down payment for the subject automobile. Additionally, she claims to have been defrauded by an individual named Duane Wallace who is actually her son for whom she signed the subject contract. The Cour therefore finds that pro-se defendant has offered no evidence to demonstrate the existence of any material triable issue of fact with respect to her liability for the monies due and owing pursuant to the contract entered into between plaintiff and defendant. Accordingly, plaintiffs motion , pursuant to CPLR g3212 , for an order granting [* 6] summary judgment in its favor and against defendant for the relief demanded in the Verified Complaint is hereby GRANTED. Plaintiff is directed to submit judgm.ent in the amount of $21 007.21 (which consists of$13,126. 54 in principal , accrued interest of$2 251.71 and late fees of $5 628. 96), plus $1 820 in attorneys fees (based on a quantum meruit basis) to the clerk in compliance with this Order. . This constitutes the Decision and Order of this Cour. ENTE DENISE L. SHER, A. Dated: Mineola , New York Februar 23 2012 ENTERED FEB 27 2012 MAAU COUNTY CouTY CLEtt'l OFFICE

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