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
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[* 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
