State Bank of Long Island v Botticelli Builders, LLC

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State Bank of Long Island v Botticelli Builders, LLC 2012 NY Slip Op 30945(U) March 28, 2012 Sup Ct, Nassau County Docket Number: 1918/11 Judge: Karen V. Murphy 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] Short Form Order SUPREME COURT - STATE OF NEW YORK TRIAL TERM. PART 11 NASSAU COUNTY PRESENT: Murphv Justice of the Supreme Court Honorable Karen J' STATE BANK OF LONG ISLAND, Index No. 1918/11 Plaintiff(s ), Motion Submitted: 12/22/11 Motion Sequence: 001, 002 , 003 -against- BOTTICELLI BUILDERS, LLC, ASSUNTINA BOTTICELLI, JERICHO PLAZA, L.L.C. BOTTICELLI JERICHO ASSOCIATES, LLC, GIULIANO BOTTICELLI, BOTTICELLI PLAINFIELD ASSOCIATES LLC, Defendant(s). The following papers read on this motion: Notice of Motion/Order to Show Cause........................ XXX Answering Papers....................................................... ... Reply.......................................................... .................... Briefs: Plaintiff slPetitioner ' s........................................ Defendant' s/Respondent' s.................................. The instant action was commenced to collect monies allegedly due and owing to plaintiff bank by defendants , based on a Promissory Note (" the Note ) and a Commercial Security Agreement (" the Agreement" ) executed by defendant Botticell Builders , LLC , and Commercial Guarantees (" the Guaranty/Guarantees ) executed by the remaining defendants. In Motion Sequence 1 , plaintiff moves this Court for an order granting summary judgment against defendants Botticelli Builders , LLC (" Builders ), Assuntina Botticell Assuntina ), Botticell Jericho Associates , LLC (" BJ A" ), Giuliano Botticell (" Giuliano [* 2] and Botticell Plainfield Associates , LLC (" Plainfield" ) in the amount of the principal $900 137.46 , together interest , late charges ($237 427. 52), costs , and attorneys ' fees. 3215 for an order directing the entry of default judgments against defendant Jericho Plaza, LLC (" Jericho ) in the amount of $900 , 137.46 , plus interest , late charges ($234 427. 52), costs , and attorneys ' fees. Plaintiff also moves this Court pursuant to CPLR None of the defendants have submitted opposition to the relief requested by plaintiff in Motion Sequence 1 , except as discussed below. By Motion Sequence 2 , Silvia Cerrone seeks to intervene in the above-captioned action , and requests that this Court issue an Order adding her as a part defendant , directing that the summons and complaint be amended to reflect same , pennitting her to serve an answer, dismissing the complaint against Jericho Plaza , LLC (" Jericho ), or in the alternative , consolidating this action with Index No. 2842/2011 pending in this Court (Mahon , J. ). Proposed intervener Cerrone seeks the foregoing relief on the ground that she is or may be inadequately represented , and that her interest in Jericho Plaza , LLC is or may be bound by the judgment to be entered herein. According to her affidavit, Cerrone alleges that she is a 50% owner of Jericho , and 25% owner of the company, as is his father Antonio. Botticelli. Further according to her affidavit , Cerrone states that , without her vote , Giuliano Botticell did not have majority approval of a guaranty given by Jericho to plaintiff. Cerrone asserts that she would never have approved making the guaranty to plaintiff, and that Giuliano Botticell has submitted fraudulent documents in the pending action identified by Index No. 2842/2011. that Giuliano Botticell is only a . Silvia Cerrone has also submitted a proposed answer on behalf of herself and Jericho Plaza , LLC. Plaintiff cross-moves to amend the complaint to add Silvia Cerrone and Carlo Cerrone , her husband , as part defendants , and for severance of this action as against Jericho Silvia Cerrone and Carlo Cerrone. Plaintiff opposes Silvia Cerrone s motion to intervene and to dismiss the complaint as to Jericho , or to consolidate this action with the action identified by Index No. 2842/2011. Giuliano Botticelli is an attorney licensed to practice law in New York , who appears to be delinquent in his attorney registration for the last three registration periods. [* 3] In connection with its cross-motion , plaintiffhas submitted copies of two continuing, unlimited , commercial guarantees , one purportedly signed by Silvia Cerrone , and the other purportedly signed by Carlo Cerrone. Each guarantee is signed on behalf of Botticell Builders , LLC. , not Jericho. Plaintiff avers that the Cerrones were not originally made parties to this action because their respective guarantees were located in a " different part of SBLI's fie " related to this matter. the Cerrones each submitted an affidavit stating that they did not sign the commercial guarantees for Botticell Builders , LLC attached to plaintiffs vice president's affidavit , and that they did not guarantee any financial obligation of Botticell Builders , LLC. Yet , the Cerrones assert that the guarantees submitted by plaintiff " appear to be taken from an unrelated line of credit or home equity loan " from past years , that were repaid. The Cerrones further assert that these old guarantees were likely presented to plaintiff in relation to the present loan giving rise to this action by their son- inlaw , defendant Giuliano Botticell. The Cerrones aver that Giuliano Botticell has engaged in various forms of fraudulent activity, including the foregoing. In reply to plaintiffs cross-motion , With regard to plaintiff's motion to amend the complaint to include Silvia and Carlo Cerrone , the Court recognizes that leave to amend pleadings " shall be freely given " absent 3025 , Northhay Construction Co., prejudice or surprise resulting from the delay (CPLR Inc. v. Bauco Construction Corp., 2d 310 , 275 A. 711 N. S.2d 510 (2d Dept. , 2000); 11 A. 3d 44 , 782 N. S.2d 758 (2d Dept. , 2004)), and unless the proposed amendment is " palpably insufficient" to state a cause of action or is patently devoid Sewkarran v. DeBells, (Smith-Hoy v. AMCPropertyEvaluations, Inc. 52A. 3d809 , 811 , 862N. 2d 238 (2d citing Lucido v. Mancuso 49 A. 3d 220 229 851 N. 513 (2d Dept. Dept. , 2008J). of merit , 2008) Inasmuch as plaintiff has produced documentation purporting to be continuing unlimited guarantees executed by each of the Cerrones on behalf ofBotticell Builders , LLC already a defendant in this action , the Court finds that the amendment is appropriate. Also Silvia Cerrone s affidavit in support of the intervener s motion requests that she be added as part defendant. The fact that Silvia and Carlo Cerrone claim that a fraud was perpetrated with respect to the guarantees is not the proper subject of a motion to amend the complaint but such a claim is properly addressed by motions made and/or proceedings held after they are added as defendants in this action , including a trial to determine issues of credibility that are apparent , even at this relatively early juncture. Furthermore , this Court finds that all necessary parties have been served with the instant motion. [* 4] Accordingly, plaintiffs application to amend the complaint is granted as set forth in the proposed amendment (Plaintiffs Exhibit G). Plaintiffshall serve the proposed amended summons and complaint upon defendants ' respective counsel on or before May 10 , 2012. In light of the foregoing, Silvia Cerrone s application to intervene in this action is denied , as she , and Carlo Cerrone , wil have the opportunity to interpose an answer to the amended summons and complaint as drafted. Silvia Cerrone s further requests for an Order dismissing the complaint against Jericho Plaza , LLC (" Jericho ), or in the alternative , consolidating this action with Index No. 2842/2011 pending in this Court (Mahon , J. ) are denied. By Decision and Order dated February 21 , 2012 , the Court (Mahon , J. ) denied Silvia Cerrone s motion requesting consolidation of the two actions. Inasmuch as Silvia Cerrone has been added as a defendant in this action , and has submitted a proposed answer in her intervener s motion (Exhibit B), dismissal of the complaint against Jericho is not appropriate at this juncture. Moreover , the grounds for otticell had no dismissal asserted by Silvia Cerrone s behalf and submitted authority to enter into the transaction with plaintiff on Jericho fraudulent documents , have not been sufficiently developed at this juncture to warrant , which are that defendant Giuliano dismissal of the complaint against Jericho. Leave to renew the motion to dismiss the complaint against Jericho is granted. Plaintiffs motion for a default judgment against Jericho Plaza , LLC (" Jericho ) is denied as the result of the amendment of the summons and complaint , and Silvia Cerrone obvious intention to interpose an answer on behalf of herself and Jericho , as evidenced by her proposed answer included in her intervener s motion. The Court now turns its attention to Motion Sequence 1 , in which plaintiff moves this Court for an order granting summary judgment against defendants Botticell Builders , LLC Builders ), AssuntinaBotticell (" Assuntina ), Botticell Jericho Associates , LLC (" BJA" Giuliano Botticell (" Giuliano ), and Botticell Plainfield Associates , LLC (" Plainfield" ) in the amount of the principal , $900 137.46 , together with interest , late charges ($237,427. 52), costs , and attorneys ' fees. It is well recognized that summary judgment is a drastic remedy and as such should (Andre 2d 131 (1974)). Summary judgment 35N. 2d361 , 320N. 2d 853 , 362N. only be granted in the limited circumstances where there are no triable issues of fact. v. Pomeroy, [* 5] should only be granted where the Court finds as a matter oflaw that there is no genuine issue 2d594 (2d (Cauthers v. Brite Ideas, LLC 41 A. D.3d 755 , 837N. as to any material fact. Dept. , 2007)). The Court' s analysis of the evidence must be viewed in the light most favorable to the non-moving part, herein defendants Builders , Assuntina , BJA , Giuliano 18 A. D.3d 625 , 796 (Makaj v. Metropolitan Transportation Authority, and Plainfield S.2d 621 (2d Dept. , 2005J). To satisfy its burden , plaintiff must submit proof of the existence of the underlying Note and the Guarantees , the unconditional terms of repayment and defendants ' failure to (Gera v. All-Pro Athletics. , Inc. , 57 Famolaro v. Crest Offset, Inc. 24 A. D.3d 2d 87 (2d Dept. 3d 726 , 870 N. 2d 387 (2d Dept. , 2005J). This Court is satisfied thatthe affidavit of Stephen 604 807 N. B. Mischo , vice president of plaintiff bank , together with the Note , Guarantees and Agreement incorporated therein , establish plaintiffs entitlement to summary judgment as a make payment in accordance with those documents. , 2008); matter of law. The Note was executed by defendant Giuliano on behalf of defendant Builders , and the " absolute , and unconditional" Guarantees were executed by defendants Assuntina and Giuliano , and by defendant Giuliano on behalf of defendants BJA and Plainfield. The Commercial Security Agreement giving plaintiff a security interest in the collateral of defendant Builders was executed by defendant Giuliano on behalf of Builders. The joint answer interposed by Builders , Assuntina, BJA , Giuliano , and Plainfield which is not verified , contains general denials and conclusory defenses to this action; thus it is insufficient to establish the existence of genuine , triable issues offact with respect to this (Orange County-Poughkeepsie Limited Partnership v. Bonte 37 A. 3d 684 830 2d 70 (2d S.2d 571 (2d Dept. Mlcoch v. Smith 173 A. D.2d 443 , 570 N. , matter , 2007); Dept. , 1991 J). Furthermore facts appearing in the movant' s papers which the opposing part does Nagel, Inc. v. Baiden 36 N. Y.2d not controvert see also McNamee Construction Corp. 539 544 , 330N. 2d624 , 369N. 2d 295 (2d Dept. , 2006J). v. City of New Rochelle 29 A. D.3d 544 817 N. (Kuehne , may be deemed to be admitted" 2d667 (1975); Plaintiffs motion for summary judgment against defendants Builders , Assuntina BJA , Giuliano , and Plainfield is granted in the amount of $900 137.46 , together with an award of interest as set forth in the affidavit of Stephen B. Mischo through and including the [* 6] date of entry of judgment. Plaintiff s request for late charges is also granted. Based on the claimed attorney s fees in the amount of$4 623 this Court awards plaintiff reasonable attorney s fees in the amount of$4 623. fact that plaintiffs attorney has Submit a judgment on notice , with a bil of costs. The foregoing constitutes the Order of this Court. Dated: March 28 2012 Mineola , N. ENTERED APR 05 2012 NASSAU COUNTY COUNTY CleRK' OFFICF

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