Stewart Info. Servs. Corp. v Corparatair LLC

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Stewart Info. Servs. Corp. v Corparatair LLC 2012 NY Slip Op 31107(U) April 16, 2012 Supreme Court, Nassau County Docket Number: 601423-11 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. TIMOTHY S. DRISCOLL Justice Supreme Court ------------------------------------------------------------------- x TRIAL/IAS PART: 16 STEWART INFORMATION SERVICES CORPORATION, NASSAU COUNTY Plaintiff, -against- Index No: 601423- Motion Seq. No: 1 Submission Date: 2/27/12 CORPORA T AIR LLC, TITLESERV, INC., and JAMES J. CONWAY III, Defendants. --------------------------------------------------------------------x The following papers have been read on this motion: Notice of Motion......................... ....... Affidavit in Support and Exhibits............................................. Affidavit of Service.. Memorandum of Law in Support.............................................. Affirmation in Opposition and Exhibit.................................... Conway Memorandum of Law in Opposition.......................... Reply Memorandum of Law in Further Support................... This matter is before the Court for decision on the Motion for Summar Judgment in Lieu of Complaint fied by Plaintiff Stewart Information Services Corporation (" Plaintiff' ) on December 16 2011 and submitted on February 27 2012. For the reasons set forth below , the Court grants the motion , and refers the determination of interest , costs , including attorney s fees and disbursements to an inquest. [* 2] BACKGROUND A. Relief Sought Plaintiff moves for an Order , pursuant to CPLR against Defendants in the amount of$4 543 156. 3213 , directing the entry of judgment , consisting of unpaid principal of the promissory note , accrued and unpaid interest thereon , and attorney s fees. Defendant James J. Conway, II B. The Paries ' (" Conway ) opposes Plaintiffs motion. History David Stutts (" Stutts ), the Assistant Secretar and Senior Vice President for Finance of Stewar Title Guaranty Company, a subsidiary of Plaintiff Stewar Information Services Corporation (" SISCO" ) affirms that SISCO , through its subsidiaries, provides title insurance and related information services required for settlement by the real estate and mortgage industries throughout the United States and in international markets. As part of oversees SISCO' s treasur management , investment baning his responsibilities, Stutts and credit relationships, risk management , budgeting and forecasting, as well as certain aspects of management reporting. Stutts affrms as follows with respect to the commercial instruments on which Plaintiff seeks judgment: Corporatair Promissory Note In 2004 , Defendant CorporatAir LLC ("Borrower" or " Maker ) executed a promissory note to borrow approximately $7 milion from U. S. Bancorp Equipment Finance. Upon information and belief, Defendant TitleServ , Inc. (" TitleServ ), a national title insurance company, is Borrower s sole member and 100% owner , and sought the fuding to purchase a paricular jet (" Aircraft" ). Upon information and belief, Conway is the sole stockholder of TitleServ. In 2007 , Borrower refinanced the Aircraft with a $5. 6 Financial , Inc. (" Key Finance ). Specifically, on or milion loan from Key Equipment about June 22 2007 , Borrower executed a promissory note (" Promissory Note ) (Ex. A to Stutts Aff. in Supp. ) in favor of Key Finance in the amount of$5 659 713. , the then-outstanding balance of the loan. Pursuant to the Promissory Note , Borrower was required to make 84 consecutive monthly payments of $51 268. , plus a final balloon payment of $3,426 000. 00. The Promissory Note also provided [* 3] inter alia, that 1) Borrower would pay a 5% late payment charge for untimely payments; 2) the Promissory Note was secured by the Collateral pledged under an Aircraft Security Agreement; 3) the failure to make required payments constituted an Event of Default; 4) upon an Event of Default , Lender was authorized to declare the entire outstanding balance of the Principal together with accrued and unpaid interest , immediately due and payable , and was entitled to interest from the date of acceleration until payment at the Default Rate; and 5) Borrower and Guarantors waived "presentment for payment, demand , notice of non- payment or dishonor notice of intention to accelerate the maturity, notice of protest and protest ofthis Note (Promissory Note at 12) . On or about June 21 , 2007 , Key Equipment assigned the Promissory Note and related loan documents to Winmark Equipment Finance , LLC (n/a MassMutual Asset Finance LLC). MassMutual Asset Finance LLC (" MassMutual") assigned all rights to the Promissory Note and related loan documents to SISCO on June 30 , 2011. Plaintiff refers to Key Equipment MassMutual (and , from and after June 30 , 2011 , SISCO) as " Lender. TitleServ Guaranty On or about June 21 , 2007 , TitleServe executed a Corporate Guaranty (" TitleServ Guaranty ) (Ex. B to Stutts Aff. in Supp. ) in which it guaranteed the Borrower s payments. The TitleServ Guaranty incorporates by reference defined terms from the Aircraft Security Agreement. Pursuant to its Guaranty, TitleServ also agreed that 1) it intended to guarantee the performance and prompt payment of all obligations under the loan documents; 2) it waived its right to assert numerous claims with respect to the Guaranty; 3) the Guaranty was assignable by Lender without notice , and TitleServ consented to assignment of the Guaranty; and 4) an assignor had all the rights ofthe Lender. Aircraft Security Agreement Borrower and Lender also entered into an Aircraft Security Agreement dated as of June 22 , 2007 (" Aircraft Security Agreement" ) (Ex. C to Stutts Aff. in Supp. ). Pursuant to the Aircraft Security Agreement , Borrower , as " Grantor " granted to the Lender , as " Secured Party, a security interest in the Aircraft to secure the payment and performance of Borrower obligations under the loan documents. Events of Default under the Aircraft Security Agreement include 1) Borrower s failure to make required payments under the Promissory Note [* 4] 2) Borrower s failure to perform any other required condition , 3) the Guarantor s insolvency or failure to pay its debts , and 4) a material adverse change in Guarantor s financial condition , or the impairment of Guarantor s ability to make required payments. TitleServ , as a Guarantor of Borrower s obligations , falls within the definition of " Guarantor " under the Aircraft Security Agreement. Upon an Event of Default , the Lender may declare all obligations immediately due and payable. In addition , the Lender may, inter alia 1) cause Grantor to return the Aircraft to Lender; 2) take immediate possession of the Aircraft; and/or 3) sell or otherwise dispose of the Aircraft. SISCO Guaranty SISCO also guaranteed, to the Lender , Borrower s obligations under the loan documents SISCO Guaranty ) (Ex. D to Stutt Aff. in Supp. ). (id. and SISCO also executed a Side Letter On June 21 , 2007 , Key Finance, as Lender at Ex. E). The Side Letter provided that 1) notwithstanding any provision to the contrar in the SISCO Guaranty or any of the related loan documents , Lender was obligated to give SISCO written notice of an Event of Default at least fifteen (15) days prior to making any demand on SISCO under the SISCO Guaranty; and 2) upon the payment in full by SISCO of the obligations under the SISCO Guaranty, Lender shall assign to SISCO inter alia, the Promissory Note and all of the Lender s rights in the Aircraft. Conway Guaranty To induce SISCO to issue its Guaranty, Conway personally guaranteed the Borrower payment and performance of its obligations to the Lender (" Conway Guaranty" ) (Ex. F to Stutt Aff. in Supp. ). Under the Conway Guaranty, Conway 1) guaranteed to SISCO the complete payment and performance of any obligations of the Borrower; 2) agreed that if Borrower failed in its payment and performance obligations , Conway would immediately make such payments and perform such obligations; 3) waived any purorted defenses to enforcement of the Conway Guaranty; and 4) agreed to pay to SISCO all reasonable costs and expenses, including attorney fees , incured by SISCO in collecting sums due. On or about June 21 , 2007 , Borrower , Conway, TitleServ and Stewart Title Insurance Company (" STIC" ), a SISCO-affliate , also entered into an Escrow Agreement (Ex. G to Stutt [* 5] Aff. in Supp. ). Under the Escrow Agreement, Conway deposited $752 023.26 with STIC , as escrow agent. In the event that Borrower failed to make a payment due under the Promissory Note , SISCO could direct STIC, as escrow agent , to disburse funds to remit to the Lender. In the event of a disbursement , the escrow agent would provide notice of the disbursement to Borrower , which was then required to replenish the escrow account within fifteen (15) days. Stutt affrms , fuher , that in April of2011 , the Federal Bureau ofInvestigation (" FBI" raided TitleServ s offces in Woodbury, New York and TitleServ " apparently went out of business " (Stutt Aff. in Supp. at ~ 36), as reflected by a newspaper aricle provided (id. at Ex. H). Borrower failed to make its April 2011 monthly payment due under the Promissory Note. SISCO subsequently notified the escrow agent , which made a disbursement in the amount of $51 268 from the escrow account to Lender on May 11 , 2011. Pursuant to the Escrow Agreement , on May 12 2011 , STIC sent a letter to Borrower advising it of the escrow disbursement (id. at Ex. I) and making a demand for reimbursement of the escrow sum. Borrower subsequently failed to make its May payment to Lender , at which time STIC as escrow agent, disbursed another $51 268 from the escrow account to cover the additional missed payment. On June 7 , 2011 , Lender sent a notice of loan default and acceleration to Borrower (" June 7, 2011 Demand" ) (Ex. J to Stutt Aff. in Supp. ). The June 7, 2011 Demand 1) declared the entire outstanding principal balance of the Promissory Note, together with interest and other obligations as defined in the Aircraft Security Agreement, immediately due and payable; 2) declared that interest on the outstanding obligations would accrue from the date of the letter at the Default Rate; and 3) stated that multiple events of default had occured, including but not limited to Borrower s failure to make the payments due , and a material adverse change in TitleServ s business and ability to make payments. Stutt affrms that Borrower has failed to make payments due under the Promissory Note every month since April of2011. Stutt affirms that , pursuant to paragraph 7(a)(4) of the Promissory Note , the occurence of an Event of Default under the Aircraft Security Agreement also constitutes an Event of Default under the Promissory Note. In addition , an Event of Default occurs under the Aircraft Security Agreement when the Secured Par determines , in its discretion , that there has been a material adverse change in the business or financial condition of any Guarantor since the date of the Aircraft Security Agreement , or a Guarantor s ability to make payments has been impaired. [* 6] Stutt submits that TitleServ s shutting down of its operations constituted an Event of Default under the Aircraft Security Agreement and , therefore, constitutes an Event of Default under the Promissory Note. On June 13 2011 , STIC disbursed the remainder of the escrow account , comprised of funds in the amount of$700 838 , to the Lender. Following Borrower s continued failure to cure its default , on June 28 , 2011 , Lender sent a letter to SISCO (Ex. K to Stutt Aff. in Supp. ) in which Lender (MassMutual) demanded that , pursuant to the SISCO Guaranty, SISCO pay the Lender all principal , interest and fees then due. In response to the demand , on June 30 , 2011 SISCO paid to Lender the sum of $3 927 701.12 , consisting of 1) $3, 919 690. 00 in outstanding principal on the Promissory Note , 2) $5 511. 12 for accrued and unpaid interest , and 3) $2 500 for unreimbursed attorney s fees. In addition , Lender and SISCO executed an Assignment Agreement dated June 30 , 2011 (id. at Ex. L) under which Lender assigned to SISCO all of Lender s rights in 1) the loan, 2) the Aircraft, and 3) the loan documents (" Assigned Interests By letter dated July 14 2011 (Ex. M to Stutt Aff. in Supp. ), SISCO notified Borrower TitleServ and Conway that SISCO paid the sum of $3 927 701. 12 to the Lender under the SISCO Guaranty, and demanded that TitleServ and Conway pay that sum to SISCO , pursuant to the TitleServ and Conway Guarantees , as well as other amounts due under the Guarantees, Promissory Note and other loan documents. Defendants have failed to pay any of the sums demanded. Stutt affrms , fuher , that SISCO has incurred $140 868. 91 in attorney s fees and costs as of August 30 , 2011 , in enforcing it rights under the Promissory Note and other loan documents. Stutt provides invoices and a summar reflecting those expenses (Ex. N to Stutt Aff. in Supp. In addition , the Aircraft has been stored in Ithaca , New York by Taughanock Aviation Corp. (" Taughanock" ), an aircraft management and charer company. Borrower failed to pay Taughanock for expenses incurred with respect to the Aircraft. SISCO , which recently obtained possession of the Aircraft , paid Taughannock $133, 307. 84 for maintenance and other services , and $18 468 for storage and insurance. In light of the foregoing, Stutt submits that the Defendants are jointly and severally liable for the total sum of$4 543 156. 87, comprised of the following amounts: [* 7] a) $3, 919 690. 00 - the outstanding principal due under the Promissory Note as of the April 2011 date of default , and paid by SISCO to the Lender pursuant to the SISCO Guaranty b) $5 511.12 - accrued and unpaid interest on the outstanding principal , paid by SISCO to the Lender pursuant to the SISCO Guaranty, c) $2 500. 00 - attorney s fees incurred by Lender in enforcing the Promissory Note, paid by SISCO to Lender pursuant to the SISCO Guaranty, d) $322 811. 00 - accrued and unpaid interest at the Default Rate of 18% per anum from July 1 2011 until the date of fiing of this action e) $18 468. 00 - cost of storing the Aircraft between August and November of2011 , and insurance for the period September 1 through November 30 2011 f) $133 307. 84 - amounts past due to Taughanock as of June 30 , 2011 for maintenance and other services related to the Aircraft , and g) $140 868. 91 - for attorney s fees and other enforcement and collection costs and fees incured by SISCO in enforcing its rights under the loan documents , through August 30, 2011. In opposition , Conway submits that the Conway Guaranty is not an instrument for the payment of money only within the meaning ofCPLR ~ 3213. Conway argues that the Cour should deny the motion and direct plaintiff to serve and fie a complaint. Conway relies in par on a letter dated December 22 2011 from SITC to Defendants ("December 2011 Letter ) (Ex. A to Luskin Aff. in Supp. ) which is titled "Notification Pursuant to Section 9- 611 of the Uniform Commercial Code of Disposition of CollateraL" C. The Paries ' Positions Plaintiff submits that it has demonstrated its right to summar judgment in lieu of complaint by 1) producing the Promissory Note, TitleServ Guaranty and Conway Guaranty, all of which are instruments for the payment of money only for puroses ofCPLR ~ 3213; 2) demonstrating that Defendants breached their obligations pursuant to those instruents in light of a) Borrower s default under the Promissory Note by, inter alia, failing to make monthly payments , b) TitleServ s cessation of its operations , which constitutes an Event of Default under the Aircraft Security Agreement and Promissory Note , c) TitleServ s failure to honor its payment obligation to SISCO which , by virtue of the Assignment Agreement , stands in the shoes of the Lender with respect to the TitleServ Guaranty, and d) Conway s breach of the Conway [* 8] Guaranty by virtue of his failure to make payments of the amounts due under the Promissory Note upon Borrower s default; and 3) establishing that Borrower has no defense to non- payment in light of a) Borrower s failure to respond to the June 7 , 2011 Demand or make any overdue payments , and b) Borrower s waiver of any protest or challenge to the enforceability of the Promissory Note , and TitleServ and Conway s waiver of defenses under their Guarantees. In addition , Plaintiff submits that it has demonstrated its entitlement to recover its costs and expenses, including attorney s fees , incurred in enforcing its rights under the Promissory Note and Guaantees , pursuant to the express provisions in those instruents , which expenses include the sums paid to Taughannock for maintenance and other services related to the Aircraft. Conway opposes Plaintiff s motion , submitting that the Conway Guaranty is not an instrument for the payment of money only under CPLR ~ 3213 in light of the fact that it expressly purorts " to impose on Conway obligations other than the payment of money only (Conway Memo. of Law in Opp. at p. 4). Conway notes, inter alia that 1) the Aircraft Security Agreement involves certain non-monetar performance obligations of Borrower; and 2) the Conway Guaranty refers to both monetar and non-monetary obligations. Conway also argues that the Conway Guaranty is not properly the subject of CPLR ~ 3213 treatment because it 1) refers to obligations contained in extraneous agreements and instruments; and 2) creates a condition that requires the plaintiffs performance before a defendant's obligation is triggered. Conway notes that the Conway Guaranty is not triggered unless and until the plaintiff were to suffer a loss by paying on its own guaranty to the lender and argues that the Conway Guaranty is more like an agreement to indemnify than a guaranty. In reply, Plaintiff argues that 1) in light of the fact that Borrower and TitleServ have not opposed the motion , the Cour should grant Plaintiff the requested relief against those Defendants; 2) the fact that the Conway Guaranty makes reference to non- payment obligations does not affect its status as an instrument for the payment of money only under CPLR ~ 3213; and 3) the Cour should reject Defendant's argument that there is an implicit condition in the Conway Guaranty that precludes the application ofCPLR ~ 3213 in light of the fact that Conway s obligations under the Guaranty are " unquestionably primar Reply Memo. of Law at p. 5). and unconditional" (P' [* 9] RULING OF THE COURT Motion for Summar Judgment in Lieu of Complaint CPLR ~ 3213 provides as follows: When an action is based upon an instrument for the payment of money only or upon any judgment , the plaintiff may serve with the summons a notice of motion for summar judgment and the supporting papers in lieu of a complaint. The summons served with such motion papers shall require the defendant to submit answering papers on the motion within the time provided in the notice of motion. The minimum time such motion shall be noticed to be heard shall be as provided by subdivision (a) of rule 320 for making an appearance, depending upon the method of service. If the plaintiff sets the hearing date of the motion later than the minimum time therefor, he may require the defendant to serve a copy of his answering papers upon him within such extended period of time , not exceeding ten days, prior to such hearing date. No default judgment may be entered pursuant to subdivision (a) of section 3215 prior to the hearing date of the motion. If the motion is denied , the moving and answering papers shall be deemed the complaint and answer , respectively, unless the court orders otherwise. The purose of CPLR ~ 3213 is to provide a speedy and effective means of securing a judgment JD. Structures, on claims that are presumptively meritorious. Inc. v. Waldbaum 282 AD.2d 434 (2d Dept. 2001). Relief pursuant to CPLR ~ 3213 is available where a right to payment can Boland be ascertained from the face of a document. (1 sl Dept. Matas 2002), quoting v. v. Indah Kiat Finance 291 AD.2d 342 , 343 AI.C. , 274 AD. 2d 327 Alpargatas 328 (1 sl Dept. 2000). A motion for summar judgment in lieu of a complaint in an action on a negotiable instrument wil be granted only when it is clear that no triable issue or real question of fact is First International Bank, Ltd. presented v. L. Blankstein Son, Inc. 59 N. Y.2d 436 (1983), when the defense raised is unrelated to the plaintiffs cause of action AD. Parry B. Private Club for Women, Inc. 113 AD.2d 791 Goodson Gateway State Bank 2d 543 (1 st Dept. 1982), or when the defense is clearly without merit Shangri-La v. 792 (2d Dept. 1985). Promissory Note A promissory note is an instrument for the payment of money only for the purpose of CPLR v. Baccaray, 3213. Davis v. Lanteri 307 AD. 2d 947 (2d Dept.2003); 214 AD.2d 601 (2d Dept. 1995). To establish a East New York Savings Bank prima facie case on a promissory [* 10] note , a plaintiff must establish the existence of the instrument and the defendant's failure to make payment pursuant to the terms of the instrument. v. Cutter Bayview Cleaners, Inc. Shirts, Inc. 57 AD. 3d 708 (2d Dept. 2008); Mangiatordi v. Spotless Maher 293 AD.2d 454 (2d Dept. 2002). Once plaintiff has met its burden , the defendant must then establish by admissible Cutter Bayview evidence the existence of a triable issue concerning a bona fide defense. Cleaners, Inc. v. Spotless Shirts, Inc. , supra; Northport Car Wash, Inc. v. Northport Car Care LLC 52 AD. 3d 794 (2d Dept. 2008). Bald , conclusory allegations are insufficient to defeat a motion for summar judgment in lieu of a complaint. AD.2d 913 (2d Dept. C. v. Federal Deposit Ins. Corp. Jacobs , 185 1992). Guaranty A personal guarantee qualifies as an instrument for the payment of money only pursuant to CPLR ~ 3213. v. Council Commerce Corp. Paschalides 92 AD.2d 579 (2d Dept. 1983). To establish an entitlement to judgment as a matter oflaw on a guaranty, plaintiff must prove the existence of the underlying obligation , the guaranty, and the failure of the prime obligor to make E.D. S. Security Sys., Inc. payment in accordance with the terms of the obligation. v. Allyn , 262 AD. 2d 351 (2d Dept. , 1999). To be enforceable , a guaranty must be in writing executed by the person to be charged. General Obligations Law ~ 5- 701 (a)(2); v. see also Schulman Westchester Mechanical Contractors, Inc., 56 AD.2d 625 (2d Dept. 1977). The intent to guarantee the obligation must be clear and explicit. Inc., 283 AD.2d 268 (1st Dept. , 2001), v. PNC Capital Recovery Mechanical Parking Systems, 98 N. Y.2d 763 (2002). Clear and explicit app. dism., intent to guaranty is established by having the guarantor sign in that capacity and by the language contained in the guarantee. Court Assocs. v. Salzman Sign Co. v. Beck Harrison ION. Y.2d 63 (1961); 220 Westchester Ave. Assocs. 203 AD.2d 244 (2d Dept. 1994). D. Counsel Fees Attorneys ' fees may be awarded pursuant to the terms of a contract only to an extent that is reasonable and waranted for services actually rendered. Kamco Supply Corp. v. Annex Contracting Inc. 261 AD. 2d 363 (2d Dept. 1999). Provisions or stipulations in contracts for payment of attorneys ' fees in the event it is necessar to resort to aid of counsel for enforcement or collection are valid and enforceable. Roe v. Smith 278 N. Y. 364 (1938); National Bank of [* 11] v. Westchester Pisani 58 AD.2d 597 (2d Dept. 1977). The amount of attorneys ' fees awarded pursuant to a contractual provision is within the SO/Bluestar, LLC cour' s sound discretion , based upon such factors as time and labor required. v. 33 AD. Canarsie Hotel Corp. 3d 986 (2d Dept. 2006); Dept. 1985). Legal fees are awarded on a summarily. See Simoni v. Time-Line, basis and canot be determined quantum meruit Ltd. 108 AD.2d 816 (2d Matter ofUry, 272 AD. 2d 537 (2d Dept. 2000); Borg v. Belair Ridge Development Corp. 270 AD. 2d 377 (2d Dept. 2000). When the cour is not provided with sufficient information to make an informed assessment of the value of the legal services , a hearing must be held. v. Bankers Fed. Sav. Bank 224 AD.2d 376 OffW. Broadway Developers, (1 st Dept. 1996). E. Application of these Principles to the Instant Action The Court concludes that Plaintiff has demonstrated its entitlement to summar judgment in lieu of complaint by providing the Promissory Note, Conway Guaranty, TitleServ Guaranty and other loan documents , and establishing the defaults thereunder. The Conway Guaranty contains Conway s agreement to " absolutely, unconditionally and irrevocably " guarantee the complete payment and performance under the applicable loan documents, and to pay all expenses, including attorney s fees , incurred by SISCO in enforcing its rights under the loan documents. The Cour is not persuaded by Conway s argument that the Conway Guaranty is not properly the subject of CPLR ~ 3213 treatment because it refers to obligations contained in extraneous agreements and instruents. In Craven v. Rigas 71 AD. 3d 1220 (3d Dept. 2010), Iv. app. den. 14 N. Y.3d 713 (2010), the Third Deparment rejected defendant's argument that a promissory note was not an instruent for the payment of money only, pursuant to CPLR ~ 3213 , because it made reference to an underlying stock purchase agreement. Id. at 1222. Noting that the promissory note contained an " unambiguous and unconditional promise to pay a specified sum, " and concluding that the reference to the stock purchase agreement served only to describe the security interest does not constitute a situation where proof beyond the note is necessar, " and did not qualify the debt owed to plaintiff under the note , the Third Department concluded that the note satisfied the prerequisites ofCPLR ~ 3213. Id. at 1222- 1223. In the matter at bar , the Cour concludes that the Conway Guaranty and Promissory Note, notwithstanding their reference to other agreements and instruments , reflect the Borrower [* 12] obligation to make payments under the Promissory Note and Conway s clear intention to guarantee performance under the loan documents , and are properly the subject of CPLR ~ 3213 treatment. The Cour also rejects Conway s argument that the Conway Guaranty is not properly the subject ofCPLR ~ 3213 treatment because it creates a condition that requires the plaintiffs performance before a defendant's obligation is triggered because the Conway Guaranty is i. e., not triggered unless and until the Plaintiff were to suffer a loss by paying on its own guaranty to the lender , and is more akin to an agreement to indemnify than a guaranty. In Borg v. Belair Ridge Development Corp. 270 AD.2d 377 (2d Dept. 2000), the Second Deparment reversed the trial cour' s order denying plaintiffs motion for summar judgment in lieu of complaint pursuant to CPLR ~ 3213 , rejecting defendant's argument that the promissory note s reference to other conditions and terms affected plaintiffs right to Id. judgment. at 378. In so ruling, the Second Deparment noted that none of the references placed additional requirements on the Id. absolute and unconditional" obligation to pay on the note. In the matter sub judice, the Court concludes that any reference to other conditions in the Promissory Note, Conway Guaranty and other loan documents does not affect the absolute and unconditional nature of the assurances provided by the Borrower and Conway in those agreements. Thus, relief pursuant to CPLR ~ 3213 is appropriate. The Court is further persuaded that summary judgment is appropriate in light of Defendants ' failure to raise a meritorious defense , and in consideration of See Lloyds Bank PLC the Waiver of Defenses set forth at Section 5 of the Conway Guaranty. McCormick Pryor 235 AD.2d 292 (1 st Dept. 1997) (summar judgment in lieu of complaint properly awarded where unconditional guarantees contained specific disclaimer of defenses available to guarantors). In light of the foregoing, the Court grants Plaintiffs motion for judgment against the Defendants. The Cour fuher concludes , however , that it has an insuffcient basis on which to determine the appropriate counsel fee award , and refers that matter to an inquest. The Court also refers the determination of interest owed to an inquest. In light of the foregoing, it is hereby ORDERED that Plaintiffs Motion for Summar Judgment in Lieu of Complaint is granted , and Plaintiff is awarded judgment , jointly and severally, against Defendants Corporatair , LLC, TitleServ , Inc. and James J. Conway II in the sum of a) $3 919 690. [* 13] representing the outstanding principal , b) $18 468. Aircraft , c) $133, 307. , for storage and insurance related to the , representing amounts past due to Taughanock for maintenance and other services related to the Aircraft , and d) interest , costs , including attorney s fees , and disbursements as determined at an inquest; and it is fuher ORDERED that the action is respectfully referred to Special Referee Frank N. Schellace on May 22 2012 at 9:30 a. m. to hear and determine all issues regarding interest , costs, including attorney s fees , and disbursements; and it is further ORDERED that Plaintiffs counsel shall serve upon Defendants, or counsel where applicable , by regular mail , a copy ofthis Order with Notice of Entry, a Note ofIssue or Notice of Inquest and shall pay the appropriate filing fees on or before May 11 , 2012; and it is further ORDERED that the County Clerk is directed to enter a judgment in favor of Plaintiff and against Defendants Corporatair , LLC , TitleServ , Inc. and James J. Conway II 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: Mineola , NY April 16 , 2012 HON. TIMOTHY S. DRISCO L -f 7\=tNTERED APR 24 2012 NASSAU COUNTY CLERK' OFFICE COUNTY

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