Parts Auth., Inc. v J & V Auto Servs., Inc.

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Parts Auth., Inc. v J & V Auto Servs., Inc. 2012 NY Slip Op 30704(U) March 12, 2012 Supreme Court, Nassau County Docket Number: 22741/10 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 Cour Justice TRIAL/IAS PART 31 NASSAU COUNTY PARTS AUTHORITY , INC. Index No. : 22741/10 Plaintiff, Motion Seq. No. : 02 Motion Date: 03/05/12 - against - ETARAS, J & V AUTO SERVICES , INe. and ANTONIO Defendants. Thefollowin papers have been tead on this motion: Papers Numbeted Notice of Motion. Affidavit. Affirmation and Exhibits and Memorandum of Law Plaintiff moves , pursuant to CPLR 3212, fot an order granting it parial summar judgment on the Second Cause of Action of the Amended Verified Complaint , establishing an account stated in the amount of $37 777.44 , and the Third Cause of Action of the Amended Verified Complaint on a personal guarantee of payment in the amount of $37 777.44; and for an order granting plaintiff interest , costs , disbursements and attorneys fees. Defendants failed to submit any opposition to plaintiff s motion. Plaintiff submits that , between August 13 2009 and D cember 28 , 2009, under Account Number 010032040, and between April 10 , 2010 and May 25 2010 , Wlder Acoount Number 0100 31040 , plaintiff sold and delivered goods, WareS and merchandise consisting of automotive pars to defendants at their special instance and request. Defendants accepted the goods , Wares [* 2] and merchandise sold to them by plaintiff. Plaintiff always had, and continues to have , an expectation of payment for said goods , wares and merchandise. Defendants were sent monthly statements reflecting the costs of the goods , wares and merchandise sold/provided by plaintiff in connection with defendants ' business. See Plaintiffs Affidavit in Support Exhibit B. Said statements were retain by defendants without objections. As a result of the goods, wares and merchandise provided to defendants though May 25 2010 , a balance in the amount of $37 777.44 remains due and owing to plaintiff. Demand for p'lyment has been made to defendants, yet no payment has been forthcoming to date. Plaintiff furher submits that , on or about Januar 4 2007 , individual defendant Antonio Metaras (" Metara ) executed a personal guaranty of payment to induce plaintiff to ptQvide . the afotementioned goods , wares and See merchandise to defenciants. Plaintiffs Affidavit in SupportExhibit D. The personal guaranty provides that defendant Metaras , as guarantor 'lpondefault in making payment as when and due by the business , promises and shall immeciiatelypay to plaintiff the entire balance due, together with interests , costs , disbursements. and attorneys ' fees. It is well settled that the proponent of a motionfOfsUIat judgment must make a primafacie. of entitlement to judgment as amattet oflaw by providing sufficient sljO\ving See Silman v. Twentieth evidence to demonstrate the absence of material issues of fact. Century- Fox Film Corp. 3 N. Y.2d Hospital, 68 N. Y.2d 320 557, 427 N. Y.S. 2d 595 (1980); 1988). To obtan 395 , 165 N. Y.S.2d 508 N. Y.S.2d 923 (1986); Bhatti v. Roche, 498 (1957); Zuckerman v. City of New York, 140 A.D.2d 660 528 N. S1lat judgment, the moving par Associated Fur Mfrs'J Inc., 46 N. s favor. 2d 1065, 416 N. v. Prospect 49 N. Y.2d S.2d 1020 (2d Dept. must establish its claim or defense by tendering suffcient evidentiar proof, in admissible form , matter oflaw, to direct judgment in the movant' Alvarez sufficient to warant the court, as a pee Friends of Animals, Inc. v. 2d 790 (1979). Such evidence may [* 3] include deposition transcripts , as well as other proof anexed to an attorney Olan v. Farrell Lines Inc. 64 N. Y.2d 1092 489 N. CPLR ~ 3212 (b); If a suffcient s affrmation. See 2d 884 (1985). showing is demonstrated , the burden then shifts to the prima facie non-moving par to come forward with compete1,t evideI;ce to demonstrate the existence of a material issue of fact , the existence of which necessarily precludes the granting of summar judgment and necessitates a trial. supra. Y.S.2d 595 (1980), v. See Zuckerman City of New York 49 N. Y.2d 557 , 427 When considering a motion for sutar judgment , the fuction of the cour is not to resolve issues but rather to determine if any such material issues of fact exist. 2d 395 , 165 N. Y.S.2d 498 Mere conclusions or unsubstantiated allegations are insuffcient to raise a triable (1957), supra. issue. 3 N. See Silman v. Twentieth Century- Fox Film Corp., See Gilbert Frank Corp. v. Fee/eral Ins. Co, 70 N.Y. 2d 966, 525 N. Y.S. 2d 793 (1988). Furher, to grant S1lar judgment, . it must clearly appear that no material triable issue of fact is presented. The burden on the cour in deciding this tye of motion is not to resQlve issues of fact or determine matters of credibilty, but merely to determine whether such iss'Ies exist. See Ban' 50 N. Y.2d 247, 428N. v. Albany County, Johnson 147 A.D.2d 312 543 N. Da/iendo v. 2ci665 (1980); S.2d 987 (2dDept.1989). Based upon the evidence and legal argument provided in its motion as detailed above, the Cour finds that plaintiff has established prima facie entitlement to judgment as a matter of law. Plaintiff has established its prima facie entitlement to summar judgment on its " goods sold and delivered" claims by submitting invoices , delivery receipts and the Affidavit of its Vice President who has described the transactions and defendants ' receipt of the goods. Oil Corp. v. Bokhari 52 A. D.3d 762 861 N. Products Corp. v. Gilman Ciocia, Inc. 30 A. 2d 730 (2d Dept. 2008); See Castle Boise Cascade Offce 3d454, 816 N. Y.S.2d 374 (2d Dept. 2006); [* 4] Becker v. Shore Drugs 296 A. 2d 515, 745 N. S.2d 492 (2d Dept. 2002). primafacie Since plaintiff demonstrated a sufficient showing, the burden shifts to defendants to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarly precludes the granting of and necessitates a trial. v. See Zuckerman S1lar judgment City of New York, supra. As previously stated , defendants have failed to submit any opposition to defeat the motion for summar judgment. Accordingly, plaintiffs motion , pursuant to CPLR ~ 3212, for an order granting it parial S1lar judgment on the Second Cause of Action of the Amended Verified Complaint establishing an account stated in the amount of$37 777A4 and the Third Cause of Action of the Personal guarantee ofpayntent in the amount of $37 777.44 Amended Verified Complaint on together with interest from May 25 2010 , is hereby GRANTE)). The branch of plaintiff s motion which is an award forcQntractually based counsd fees must be set ciqwn for a hearing to deterIine Bldg. whethet thelees sought are TPZ Corp. SeelJest Renovaticms 39 A. D.3d 788 , 835 Supply Lumber Corp. v. MrJstercraft Homes 2d 355 (2d Dept. 2007); reasonable. v. WinanfPlaqe AS$oc. 308 A. 2d 577, 764 Y.S.2d 868. (2d Dept. 2003). " An award of attorney s fees pursuant to such a contractual provision may only be enforced to the extent that the amount is reasonable and waranted for the services actually rendered. 477 818 N. See CIT Group/Equipment Financing, Inc. S.2d 258 (2d Dept. 2006); D.2d 363 68.9 N. Y.S. 2d v. Riddle 31 AD. Kamco Supply Corp. v. Annex Contracting, Inc. , 261 189 (2d Dept. 1999). Said hearing shall be held after the trial or resolution of this action. Plaintiff must fie a Note of Issue before the aforementioned hearing. A copy of this Order shall be served upon the County Clerk when the Note ofIssue is filed. Failure to fie a Note ofIssue or appear as directed shall be deemed an abandonment of the claims giving rise to the Inquest. [* 5] As this motion was only for parial S1lar judgment, it is fuher ordered that the paries shall appear for a Preliminar Preliminar Conference Conference on April 26 , 2012 , at 9:30 a. , at the Desk in the lower level of 100 Supreme Court Drive , Mineola , New York , to schedule all discovery proceedings. A copy of this Order shall be served on all paries and on the DCM Case Coordinator. There will be no adjourents , except by formal application pursuant to 22 NYCRR 125. This constitutes the Decision and Order of this Cour. DENIS Dated: Mineola, New York March 12 , 2012 ENTERED MAR 14 2012 NASSAU COUNTY COUNTY CLERK' S OFFiCe

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