Signature Bank v Ressler Mitchell Group, Inc.

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Signature Bank v Ressler Mitchell Group, Inc. 2012 NY Slip Op 31832(U) July 2, 2012 Supreme Court, New York County Docket Number: 103824/11 Judge: Joan A. Madden 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 NEW YORK COUNTY I PRESENT: * HON. JOAN A. MADDEN J.S.C. PART Justko - Index Number : 103824/2011 I ( SIGNATURE BANK INDEX NO. VS. MOTION DATE RESSLER MITCHELL GROUP, INC. SEQUENCE NUMBER : 001 MOTION SEQ. NO. SUMMARY JUDGMENT Tho followlng papers, numbered 1 to Notlce of MotlonlOrdor to Show Cause Answering Affldavita Replying AHdavib - Exhibitr ,were road on thir motion tO/fOr -Affldrvitm - Exhiblk IW s ) . IW a ) . INo(*). a\ Upon the foregolng papm, It I ordered that thlr motlon I s s m-8Zda 4 k ..................................................................... CASE DISPOSED C DENIED ] 2. CHECK AS APPROPRIATE: ........................... MOTION IS: GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0SElTLE ORDER l&N. JOAN A. MADDEN +-FINAL 1. CHECK ONE: DO NOT POST J.S.C. -TED -O JN IN PART [7 OTHER SUBMIT ORDER [7 FIDUCIARY APPOINTMENT REFERENCE [* 2] 4 Plaintiff, INDEX NO. 103824111 -against- RESSLER MITCHELL GROUP, INC. d/b/a RESSLER MITCHELL GROUP INC. d/b/a THE RESSLER MITCHELL GROUP, INC., MONIKA RESSLER dk/a MONIKA M. RESSLER and PETER RESSLER ak/a PETER D. RESSLER &a PETER RESSLER SR., JOAN A. MADDEN, J.: FILED NEW YORK COUNTY CLERK S OmCE In this action to recover on a business line of credit agreement and two personal guaranties, plaintiff bank moves for an order pursuant to CPLR 3212 granting summary judgment against defendant guarantors Monika Ressler &a Monika M. Ressler (hereinafter Monika Ressler ) and Peter Ressler ak/a Peter D. Ressler alWa Peter Ressler Sr. (hereinafter Peter Ressler ). Plaintiff also moves for an order pursuant to CPLR 321 5 granting a default judgment against defendant borrower Ressler Mitchell Group, Inc. d/b/a Ressler Mitchell Group Inc. d/b/a The Ressler Mitchell Group, Inc. (hereinafter Ressler Mitchell ), based on said defendant s failure to appear and answer. Individual defendants Monika Ressler and Peter Ressler oppose the motion. Corporate defendant Ressler Mitchell has defaulted on the motion, and has not sought affirmative relief by 1 While defendants Monika Ressler and Peter Ressler answered pro se and their opposition papers do not include the name of an attorney, a law fr appeared for them at oral argument and im the court permitted the submission of an attorney s affirmation in opposition. [* 3] cross-moving to vacate its default or to serve a late answer. On a motion for summary judgment to enforce a written guaranty, all the creditor need prove is an absolute and unconditional guaranty, the underlying debt, and the guarantor s failure k to perform under the guaranty. Citv of New Y ~ r v. Clarose Cinema COQ, 256 AD2d 69,71 (lstDept 1998); accQrd Davimos v. Halle, 35 AD3d 270,272 (1 Dept 2006). Defendant guarantor may defeat the motion by raising a triable issue of material fact with respect to a bona Dept 2012); Wolfv, fide defense. &g JP Mormn Chase Bank v. Rauer, 92 AD3d 641, 642 (2 d Citibank, N.& 34 AD3d 574, 575 (2 d Dept 2006); Bank Leumi Tmst Co v. Rstttet & Liebman, 182 AD2d 541 ( lStDept 1992); Banesto Ranking Corn , y, T e i t h , 172 AD2d 469 (1 Dept 1991). Plaintiffs motion is granted only to the extent of liability. Based on the affidavit from plaintiffs Manager of Small Business Loans, Martine Lamarre, and the supporting documents, plaintiff has made a prima facie showing that on April 24,2007, it entered into a Business Revolving Line of Credit Account Agreement (the Agreement ) with defendant Ressler Mitchell, giving Ressler Mitchell a $50,000 line of credit. Plaintiff s Manager Lamarre states that pursuant to the Agreement, Ressler Mitchell borrowed $50,000, and subsequently defaulted when it failed to make the payment due on or about February 201 1, Lamarre further states that no part of the outstanding principal balance of $46,936.86 has been paid, as well as no part of the interest and late fees accrued. Lamarre also states that in connection with the Agreement, individual defendants Monika Ressler and Peter Ressler each executed a Continuing Guaranty (Individual) dated April 23, 2007. The guaranties provide that the guarantors, Peter Ressler and Monika Ressler, agree to be 2 [* 4] jointly and severally liable and to absolutely and unconditionally guarant[y] to Bank [plaintiff Signature Bank] the due and punctual payment when due, whether by acceleration or otherwise, in accordance with the terms thereof, the full and prompt payment and performance by Borrower [Ressler Mitchell Group Inc.] all of Borrower s Indebtedness. Plaintiff submits a copy of the Agreement signed by both Monika Ressler and Peter Ressler in their capacities as officers of the corporate borrower; plaintiff also submits copies of the guaranties signed by Monika Ressler and Peter Ressler, Individually. Based on these documents and the affidavit of non-payment, plaintiff is entitled to partial summaryjudgment as to liability against the defendant guarantors who have answered and appeared in this action, Monika Ressler and Peter Ressler. & Davirnos v. Hdle, supra; City of New York v, Clarose Cinema Cow , supra. Plaintiff is likewise entitled to a default judgment as to liability against the corporate borrower Mitchell Ressler. Plaintiff fails to make a sufficient prima facie showing as to the amount of damages to which it is entitled. M i l e plaintiffs moving and reply affidavits state that the principal sum of $46,936.86 is due and owing since February 20,201 1, the documentary proof submitted by plaintiff does not support such amount. On March 3,20 11, plaintiffs attorney wrote to defendants demanding payment of $47,084.42 as the amount of claim. Likewise, plaintiff s computer printout which purportedly outlines the payments made and the balances owed from August 2010 through January 201 1, lists an ending balance of $47,474.87as of January 3 1, . 20 11 Neither plaintiffs motion nor reply papers explain the discrepancies between the varying 2The only loan history records submitted by plaintiff are for the period from August 20 10 to January 20 1 1, when plaintiff asserts it automatically deducted the loan payments from the corporate defendant s checking account, as authorized under the Agreement. Plaintiff submitted 3 [* 5] amounts, and specifically how it arrived at the lesser amount of $46,936.86, sought in both the complaint and the instant motion. Plaintiff also seeks interest on the $46,936.86 amount, calculated from February 20, 201 1 through the entry of judgment, at the Prime Rate of Interest plus 2 .OO%, plus additional late fees. Plaintiffs computer printout, however, appears to indicate that interest has already been added each month to the balance owed, so it is unclear whether plaintiff is entitled to additional interest on those sums or late fees. Turning to the opposition papers, defendants Monika Ressler and Peter Ressler submit a joint affidavit which fails to raise a material issue of fact as to their liability under the guaranties. While defendants object to the sufficiency of plaintiffs motion papers, they do not deny that they executed the Agreement and the guaranties, and simply state in a bare and conclusory fashion that no default of the promissory note ever existed. Defendants have waived any objections as to improper service. & CPLR 321 l(e); Aretakis v, Tarantino, 300 AD2d 160 (lstDept 2002). The affidavit of service, however, clearly indicates that the process server made three separate attempts to serve defendants at their residence before affixing the papers to their door. Defendants allegations that plaintiff made unauthorized deductions from the corporate defendant s bank account and an unauthorized freezing of defendants account without a court order, conflict with the unambiguous terms of the Agreement which expressly authorize such action^.^ To the extent defendants dispute the amount due and owing, they will have an those records with its reply papers, which responded to defendants allegation that plaintiff made unauthorized deductions from the corporation s bank account. 3Paragraph 3(e) of the Agreement states as follows: The Borrower hereby authorizes and directs the Bank to charge any account of the Borrower maintained at any office of the Bank for the amount of the principal, interest or any fees due hereunder when the same becomes due and payable under the terms of this Agreement. Paragraph 8 of the Agreement states that the 4 [* 6] opportunity to raises those issues at the trial on damages. Based on the foregoing, the court concludes that in view of defendants uncontroverted default on the Agreement and the guaranties, and in the absence of a triable issue of material fact as to a viable defense, plaintiff is entitled to partial summary judgment as to liability against defendant guarantors Monika Ressler and Peter Ressler, and the issue as to the amount of damages shall be determined at trial. & JP Morgan Chase Bank. N.A.v. Bauer, supra; m B C Bank USA, N.A. v. Laniado, 72 AD3d 645 (2nd Dept 2010); Bavimos v. Halle, supra; JPMoraan _Chase Bank v. Gamut-Mitchell. Inc., 27 AD3d 622 (2 d Dept 2006). Plaintiff is also entitled to a default judgment against defendant borrower Ressler Mitchell, and an inquest and assessment of damages against said defendant shall be held at the time of the trial of this action. Furthermore, since the Agreement and the guaranties contain attorney s fees clauses, plaintiff is entitled to an award of reasonable attorney s fees, the amount of which shall be determined at trial. Accordingly, it is hereby ORDERED that plaintiffs motion for summary judgment against defendants Monika Ressler and Peter Ressler is granted only to the extent of liability, and the issue of damages, including the amount of reasonable attorney s fees, shall be determined at trial; and it is further ORDERED that plaintiffs motion for a default judgment against defendant Ressler Mitchell is granted only to the extent of liability, and an inquest and assessment of damages Bank s obligation to make Loans shall immediately terminate, and the Loans, together with my accrued interest shall be immediately due and payable. According to plaintiff, the practical reality of this provision is that the revolving credit line freezes and the defendants were no longer able to take out loans, so the account freeze is a direct result of defendants default. 5 [* 7] against said defendant, including reasonable attorney's fees, shall be conducted at the time of the trial of this action; and it is further ORDERED that the parties are directed to appear for a preliminary conference on July 26, 2012 at 9:30 am, Part 11, Room 351,'60 Centre Street. The court is notifying the parties by mailing copies of this decision and order. ENTER: FILED NEW YORK COUNlY CLERK'S OFFICE 6

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