Nemiroff v Sullivan
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Nemiroff v Sullivan 2012 NY Slip Op 31492(U) May 18, 2012 Sup Ct, Nassau County Docket Number: 601345/2011 Judge: Lawrence K. Marks 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 OF THE STATE OF NEW YORK COUNTY OF NASSAU STEVEN NEMIROFF and SHA NEMIROFF Plaintiffs, Index No. 601345/2011 - against - PAUL SULLIVAN Defendant. LAWRNCE K. MAS , J. Plaintiffs Steven Nemiroff and Shari Nemiroff Gointly, "the Nemiroffs ) move for 3213 , against defendant Paul summar judgment in lieu of complaint , pursuant to CPLR Sullvan. BACKGROUN Defendant Sullvan had been the Nemiroffs ' stock broker and financial consultant. Mot Br at 2. Plaintiffs aver that , in April 2005 , it was discovered that Sullvan had conducted numerous unauthorized and improper stock purchases and transactions resulting in losses to the Nemiroffs in excess of$200 000. Id. at 2- To resolve their dispute , the parties signed a Stipulation of Settlement , notarized on June 7 , 2005 and again on June 8 , 2005. Id. at 2; id., Exh A (" Stipulation ). Under the Stipulation , Sullvan was to repay the Nemiroffs $200 000 , in 40 monthly installments of$10 000. Stipulation 1. The first monthly installment would be due on October 1 [* 2] 2005 , and the remaining monthly installments would thereafter be due on the first day of Id. each of the following 39 months. Pursuant to the terms of the Stipulation , if Sullvan failed to make any payment on the due date , or within 15 days thereafter , the entire balance would become due immediately, plus interest of 9% on the quarerly Id. the end of each quarer. ~ 2. In the event of a default balance at , Sullvan agreed that the Nemiroffs could enter judgment against him , in any court of competent jurisdiction , for the entire balance due , plus 9% interest from the date of default plus any other or additional moneys owed by " Sullvan to the Nemiroffs as a result of Sullvan s " improper and unauthorized stock purchases and trades. Id., ~ 3. If Sullvan complied with all the terms and conditions of the Stipulation , he would " be deemed to be released from any fuher liabilty" to Id. ~ 4. the Nemiroffs. Plaintiffs allege that Sullvan s payment history "was inconsistent , at best" - - in both timing and amount. Mot Br at 3. The initial payment , due on October 1 2005, was not made until Januar 15, by Sullvan on October 1 2007. Id. The last payment received by the Nemiroffs , made 2010 , was in the amount of $600 , rather than $10 all , plaintiffs allege that Sullvan paid $153, 830 of the $200, 000. Id. 000. Id. The Nemiroffs aver that , after calculating in the 9% interest provided in the Stipulation , defendant stil owed them $142 328. 15. Id. at 4; Mot Br , Exh B. Plaintiffs seek to collect this sum from Sullvan and they moved pursuant to CPLR ~ 3213 for summar judgment in lieu of complaint, arguing that it is an appropriate and [* 3] effective means of collecting the money owned to them under the Stipulation. Mot Br at 2. The Nemiroffs also request interest at the rate of9% per anum accruing after 2011, and costs and attorneys November 30 ' fees. Id. at 5. DISCUSSION The purpose of summary judgment in lieu of complaint is "to provide quick relief. v. Weissman Sinorm Deli 88 N. 2d 437, 443 (1996). Under CPLR ~ 3213: 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." CPLR ~ 3213 , therefore allows " actions based upon an instrument for the payment of money only " to be commenced with a motion for summary judgment , rather than a complaint , to provide a speedy and effective means ' for resolving ' presumptively meritorious ' claims. A part utilzing this accelerated judgment procedure prevails ' , upon all the papers and proof submitted the cause of action. . . shall be established sufficiently to warrant the court as a matter of law in directing judgment' for the plaintiff. A defendant can defeat a CPLR 3213 motion by offering evidentiar proof sufficient to raise a triable issue of fact. ' Banco Popular N Am. v. Victory Taxi Mgmt. , Inc. 1 N. Y.3d 381 383 (2004) (internal citations omitted). Where the document at issue is a settlement agreement, and it has been established that the non-moving part has " failed to make the payments required by the settlement agreement , which is an instrument for the payment of money only. . . it is [* 4] appropriate. . . to grant summary judgment pursuant to CPLR 3213. Inc. v. Inc., Waldbaum 34 A. D.3d 282 A. 2d 434 436 (2d Dep 751 , 752- 53 J.D. Structures, See also Krape t 2001). v. PDK Labs (2d Dep t 2006). Sullvan contends that this dispute should be resolved by litigation, following a summons and complaint, rather than a motion for summar judgment in lieu of complaint. R. Sullvan Aff, ~~ 1- 2. He asserts that , if a summons and complaint were served , he would interpose an affirmative defense of statute of limitations. R. Sullvan Aff, ~ 2. He argues that the Stipulation is not a dated agreement, nor is there any date on the document that reflects when it was signed and , therefore , an issue exists as to the statute of limitations. Id. Defendant claims that the six-year statute of limitations begins to run on the date from which each installment became due and that , with regard to the first installment , more than six-years has passed since it was due on October 1 2005. Id. ~ 4. The Nemiroffs respond to the question that defendant raised regarding the date of the Stipulation by noting the June 7 and 8 , 2005 dates in the Notary acknowledgments of the paries ' signatures. Turkish Aff , ~ 6. The Nemiroffs further argue that the default is well within the sixIn this year statute of limitations period. Id. , the plaintiffs are correct. No evidentiar ~ 11. proof has been submitted that would create a triable issue of fact with regard to the time frame for the Stipulation. Indeed , Sullvan has not even raised an argument as to why the dates on the Stipulation for when the parties ' signatures were notarized might not be accurate. With regard to the [* 5] dates of payments , in his submitted papers , Sullvan addresses the timing of when the first payment was due , and when it was paid. R. Sullvan Aff , ~~ 4- 5. Even at oral argument defendant only expanded the discussion to the first two payments. However , Sullvan failed to raised a basis for why money that he already paid to plaintiffs would not have been credited to the earliest payments due. As such , none of the statute of limitations assertions raised by defendant , are reasonable. At bottom , Sullvan put forth no evidence that would contradict that the first two payments were made to plaintiffs within the sixyear statute of limitations , or that contradict in any way the record of payments submitted by the Nemiroffs. See generally, R. Sullvan Aff; Mot Br , Exh B. Sullvan also argues that there is a triable issue of fact as to whether plaintiffs claims are bared by the doctrine of equitable estoppel. R. Sullvan Aff, ~ 4. He argues that , since no action was previously commenced against him under the Stipulation, he has a right to prove that he was misled into paying a reduced amount for years. Id. ~ 5. In replying to this contention , plaintiffs note that defendant Sullvan s opposition consists only of an affidavit from his counsel , and that this Affirmation of Robert G. Sullvan , Esq. (a different individual than defendant Paul Sullvan), is submitted only in his capacity as an attorney and does not state that he has personal knowledge of any of the underlying facts. Turkish Aff, ~~ 2 , 8. Again , in this , plaintiffs are correct. Defendant has not offered any evidentiary proof in support of equitable estoppel , not even his own affidavit. Nor did defendant [* 6] request at oral argument the opportunity to supplement or correct his submissions to this Court. As such , Sullvan has failed to raise a triable issue of fact sufficient to defeat the instant motion. As to the amount in dispute, defendant has put forth no evidence to rebut or See contradict the figures provided by the plaintiffs. Sullvan Aff. As such , Mot Br , Exh B; see generally, the Nemiroffs have established their entitlement to the $142 328.15 they seek in this motion. As noted above , the Stipulation also provides that in the event that Sullvan defaults , the Nemiroffs may seek an additional 9% interest from the date of default plus any other or additional moneys owed by " Sullvan to the Nemiroffs as a result of Sullvan s " improper and unauthorized stock purchases and trades. " Stipulation, ~ 3. However , nothing in the language of the Stipulation indicates that these " other or additional moneys " relate to litigation costs and attorneys fees that the Nemiroffs seek in the instant motion. Rather , a plain reading of the agreement would indicate that this refers to the funds that the Nemiroffs claim they lost in excess of the $200 000 at issue in the Stipulation. Id.; Mot Br at 2- 3. Therefore, the Court awards the Nemiroffs the 9% interest they seek in this motion , but declines to award costs and attorneys ' fees. The Court has considered the parties ' other arguments, and finds them unavailng. " " [* 7] Accordingly, it is ORDERED that the motion of plaintiffs Steven Nemiroffand Shari Nemiroff motion sequence # 1 , for summary judgment in lieu of complaint pursuant to CPLR 3213, is granted insofar as plaintiffs are awarded $142 328. 15, plus interest at the rate of 9% per annum accruing from November 30, 2011 , against defendant Paul Sullvan , and the motion is otherwise denied. This constitutes the Decision and Order of the Court. Dated: May Lg' , 2012 ENTER: ENTERED JUN 04 2012 NASSAU COllTY eOU' NTY CLERK" Of'JCI
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