Fleetwood Fin., A Div. of IDB Leasing, Inc. v Walter J. Dowd, Inc.

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Fleetwood Fin., A Div. of IDB Leasing, Inc. v Walter J. Dowd, Inc. 2012 NY Slip Op 31506(U) May 31, 2012 Sup Ct, NY County Docket Number: 113484/2011 Judge: Eileen A. Rakower 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. SCANNED ON 61712012 [* 1] A T SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART PRESENT: /GA Justlce Index Number : 1134841201 1 FLEETWOOD FINANCIAL INDEX NO. vs. WALTER J. DOWD, INC. SEQUENCE NUMBER : 001 MOTION DATE MOTION SEQ. NO. SUMMARY JUDGMENT The followlng papem, nurnbemd 1 to Notice of MotlonlOrder to Show Cause Anrwerlng Affldavib ,wore read on this motion tonor -Affldavlta - Exhibits IW ) . L - Exhibib Repiylng Affldavita Upon the foregoing paper$, It is ordered that thls motlon lo I. CHECK ONE: ..................................................................... Y 0 0 NON-FINAL DISPOSITION CASE DISPOSED 0GRANTEDIN PART IJ OTHER 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE ........................... MOTION is: GRANTED 0DENIED 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 2. CHECK AS APPROPRIATE: 0DO NOT POST [* 2] - against - FILED JYN 07 Third Party Plaintiffs, Mot. Seq. No. : 001 Decision and Index No. 590096/2012 -against- DME SECURITIES LLC, MICHAEL BERGER, JOHN COLVIN AND WARREN MEYERS, Plaintiff brings this action seeking payments allegedly due pursuant to an equipment lease for computer equipment and furniture, entered into by Walter J. Dowd Inc. ( Dowd ), the corporate defendant, and Gordon Charlop ( Charlop ), 1 [* 3] the guarantor, in 2007. Plaintiff makes this motion for an Order (1) pursuant to CPLR $32 15 granting plaintiff a default judgment against Dowd, and (2) pursuant to CPLR $32 12 granting summary judgment in favor of Plaintiff and against Charlop for the relief demanded in the Complaint and dismissing Charlop s Verified Answer containing unsubstantiated affirmative defenses on the grounds that there are no triable issues of fact and that summary judgment is warranted as a matter of law. Plaintiff entered into an agreement with Dowd on June 4,2007. In connection with the above-mentioned lease-agreement, Charlop executed a personal guaranty dated June 11, 2007. The guaranty set forth, I In order to induce Fleetwood Financial, a division of IDB Leasing, Inc. ( Fleetwood ), to enter into one or more personal property leases, installment sales contracts, andor notes and security agreement collectively called the Agreements with Walter Dowd, Inc., hereinafter called the Debtor, or otherwise extend financial accommodations in favor of the Debtor, the undersigned does hereby unconditionally guarantee to Fleetwood; (a) the prompt payment of any and all indebtedness or obligations of every kind or nature; now or hereafter owing by the Debtor to Fleetwood however arising. Plaintiff alleges that Dowd stopped making payments on June 2, 20 11. Plaintiff asserts that pursuant to the contract, Dowd, the corporate defendant, and Charlop, as guarantor, owe $50,547.97, with interest. Charlop does not deny that he executed a personal guaranty in connection with the Lease Agreement between Plaintiff and Dowd. However, he asserts three affirmative defenses: (1) Plaintiffs knowingly permitted the equipment to be used without payment by a third party, thereby discharging the guaranty as a matter of public policy; (2) Plaintiff is estopped from taking advantage of the clauses in the Lease Agreement precluding the Guarantor from asserting discharge of the Guaranty; (3) Plaintiff has waived the clause of the lease agreements precluding the guarantor from asserting discharge of the guaranty. On February 7,2012, Charlop filed a third-party summons against DME Securities LLC, Michael Berger, John Colvin and Warren Meyers ( Third Party 2 [* 4] Defendants ) alleging inter alia, that DME Securities LLC has taken possession of the equipment that is the subject of this litigation and that each of the Third Party Defendants are personally responsible for payment of 25 % of all unpaid costs and expenses under the Lease Agreements. Plaintiff annexes a copy of its summons and complaint along with an affidavit of service attesting to personal service of the summons and verified complaint upon Dowd on December 13,201 1, and Charlop on December 12, 20 11, as well as second mailings of the complaint. Charlop submitted an Answer on February 6,2012, and filed a third-party summons on February 8,2012. Dowd failed to Answer the complaint or otherwise appear in this action. ~ Plaintiff submits the affidavit of Richard Miller, the First Vice President of IDB Leasing, Inc., which establishes that Dowd owes $50,547.97. Thus, the court finds that Plaintiff is entitled to default judgment pursuant to CPLR $3215(a), against Dowd in the amount of $50,547.97, with interest, due to his failure to answer the complaint, this motion, or otherwise appear. With regard to Plaintiffs summary judgment motion, the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law. That party must produce sufficient evidence in admissible form to eliminate any material issue of fact from the case. Where the proponent makes such a showing, the burden shifts to the party opposing the motion to demonstrate by admissible evidence that a factual issue remains requiring the trier of fact to determine the issue. The affirmation of counsel alone is not sufficient to satisfy this requirement. (Zuckerman v. Ct o New York, 49 iy f N.Y.2d 557 [ 19801). In addition, bald, conclusory allegations, even if believable, are not enough. (Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255 [1970]). ( Edison Stone Corp. v. 42nd Street Development Corp.,145 A.D.2d 249,25 1-252 [ 1st Dept. 19891). The guaranty, signed by Gordon Charlop, states in pertinent part, This guaranty is a continuing guaranty. Nothing shall discharge or satisfy the undersigned s liability hereunder except the full performance and payment of all of the Debtor s obligations to Fleetwood, with interest .... The instrument shall continue in full force and effect until terminated by actual receipt by Fleetwood, by 3 [* 5] registered or certified mail, or written notice of termination from the undersigned. In opposition to the motion for summary judgment, Charlop provides his own affidavit which fails to demonstrate that a factual issue remains regarding the ongoing obligations under the guaranty. Based on such obligations under the guaranty, Charlop is hereby obligated to make the payments owed. Wherefore, it is hereby, ORDERED that plaintiff's motion for default against Defendant Walter J. Dowd is granted without opposition, and it is further, ORDERED that plaintiffs motion for summary judgment against Defendant Gordon Charlop is granted; and it is further, ORDERED that the Clerk enter judgment in favor of plaintiff against defendants Walter J. Dowd, Tnc., and Gordon Charlop in the amount of $50,547.97, together with interest as prayed for allowable by law (at the rate of 9% per annum from June 2,20 11) until the date of entry of judgment, as calculated by the Clerk, and thereafter at the statutory rate, together with costs and disbursements to be taxed by the Clerk upon submission of an appropriate bill of costs. This constitutes the decision and order of the court. All other relief requested is denied. -7 Dated: May 3 1,2012 EILEEN A. T T L R , Jg.CD JllN 0 7 2012 4

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