Victoria Plumbing & Heating Supply Co. v Yopp

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Victoria Plumbing & Heating Supply Co. v Yopp 2012 NY Slip Op 31877(U) July 5, 2012 Sup Ct, Nassau County Docket Number: 11614-11 Judge: Antonio I. Brandveen 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] SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: ANTONIO I. BRANDVEEN J. S. C. VICTORIA PLUMING & HEATING SUPPLY CO. Plaintiff against - TRIAL / IAS PART 29 NASSAU COUNTY Index No. 11614Motion Sequence No. 001 RICHA YOPP SR. AND RICHA YOPP JR. Defendants. The following papers having been read on this motion: Notice of Motion , Affidavits , & Exhibits. . . . . . Answering Affidavits Replying Affidavits. . . . . . . . Briefs: Plaintiffs / Petitioner Defendant' s / Respondent's. . . . . . The plaintiff corporation moves pursuant to CPLR 3215 for default judgment against the defendant Richard Y opp Jr. The plaintiff also moves pursuant to CPLR 32152 for sumar judgment against the defendant Richard Y opp Sr. , and to dismiss this defendant's answer with affrmative defenses and cross claims on the ground there are no triable issues of fact. The plaintiff seeks to recover the liquidated sum of$37 142.33 plus interest from June 2010 to the date of the entry judgment against these defendants pursuant to the defendants breach of a Februar 25, 2008 written application for credit containing their written personal [* 2] guarantees for payment of any obligation of ACS Mechanical Inc. The plaintiff maintains it sold and delivered goods to ACS Mechanical Inc. , at the request of ACS Mechanical Inc. , for the agreed price and reasonable value of$37 142.33 , but there was no payment after due demand. The plaintiff obtained judgment against ACS Mechanical Inc. on November 17 , 2010 for $38 889. , including interest from June 30 , 2010 together with costs and disbursements of that Supreme Cour , Nassau County action index number 17919/10. A plaintiff s right to recover upon a defendant's default in answering is governed Trust Co. , 44 , 378 N. 2d 106) which requires that the S.2d 743 Y.2d 568 572 406 N. Green v. Dolphy (see CPLR 32l5(fJ; plaintiff state a viable cause of action 2d 635 , 636 , 590 N. Y.S.2d 238). In determining whether Constr. Co. 187 A. the plaintiff has a viable cause of action , the cour may consider the pleadings in (see Woodson v. the action , affidavits , or affirmations submItted by the plaintiff Mendon Leasing Corp. 100 N. Y.2d 62 , 71 , 760 N. S.2d 727 , 790 N. E.2d 131 (see Haberman v. Wassberg, 1156), and prior determinations of the cour S.2d 925) 2d 331 333 516 N. Fappiano v. City of New York 5 A.D. 3d 627 628- 629 , 774 N. Y.S. 2d 773 (2d Dept , 2004). by CPLR 3215 (see Reynolds Securities v. Underwriters Bank Richard Y opp Jr. never appeared in this matter. The damages sought here are for a sum certain. The plaintiff submits the Februar 17 , 2012 affdavit of its president , who states the goods were sold and delivered to ACS Mechanical Inc. which defaulted on payment of the agreed price of $37 142. 32 guaranteed by Richard Yopp Jr. This Cour determines the plaintiff meets its CPLR 3215 burden for default judgment against the defendant Richard Yopp Jr. To defeat a motion for sumar judgment , the opposing par must show facts sufficient to require a trial and "must make his showing by producing evidentiar proof in admissible form (Friends of Animals v Associated Fur Mfrs. , supra (9 AD2d 297 301) As the *553 Di Sabato v Soffes 1067- 1068). As the court in (9 AD2d 297, 301) stated: stated: " It is incumbent cour in Di Sabato v Soffes upon a defendant who opposes a motion for summar judgment to assemble , lay bare and reveal his proofs , in order to show that the matters set up in his answer are real and are capable of being established upon a trial. " Bare conclusory (Ehrlich v. allegations are insufficient to defeat a motion for summar judgment American Moninger Greenhou e Mfg. Corp. 26 N. Y.2d 255 259 309 N. Shaw v. Time-Life Records, supra p. 207 , 379 N. Y.S. 341 257 N. E.2d 890; 70 A. D.2d 792 , 794 Sur. Co. v. Schulman, 390 , 341 N. 2d 817; Aetna Cas. 417N. Y.S.2d 77)" Spearmon v. Times Square Stores Corp. 96 A.D.2d 552 552- 553 465 N. Y.S. 2d 230 (2d Dept 1983)). Page 2 of 6 [* 3] The " mere hope or speculation that evidence sufficient to defeat a motion for summar judgment may be uncovered" by further discovery is an insufficient (Lopez v. WS Distrib. Inc. 34 AD. 3d at 760 825 basis for denying the motion Y.S.2d 516; see Conte v. Frelen Assoc. 51 AD. 3d at 621 858 N. Y.S.2d 258; 2d 651) Min Whan Ock v. City of New York 34 AD. 3d 542 824 N. 2d 103 (2d Dept, 2010). Woodardv. Thomas 77 AD. 3d 738 , 740 913 N. Richard Y opp Sr. raises five affirmative defenses: failure to state a cause of action; lack of personal jurisdiction; someone else executed the documents without his knowledge or consent; damages were caused by the plaintiff or an unamed par; and damages were contributed to in whole or in part by the culpable conduct of third paries. The plaintiff contends it was not paid as agreed and guaranteed after sale and delivery of the goods to ACS Mechanical Inc. The plaintiff asserts the guarantee by Richard Y opp Sr. was clear and unambiguous. In determining a motion to dismiss pursuant to CPLR 3211(a)(7), the cour must " accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference , and determine only whether the facts as alleged fit within any cognizable legal theory 84 N. Y.2d (Leon v. Martinez, 83 87- 614 N. First Keystone Consultants, Inc. v. DDR Constr. Servs. 74 A. S.2d 972 638 N. E.2d 511; 3d 1135 , 1136 904 N. Y.S.2d 113)" (Palm v. Tuckahoe Union Free School Dist. 95 AD.3d 1087 , 1089 944 N. S:2d 291 (2d Dept , 2012)). The plaintiff here raises allegations which demonstrate the existence of fide see bona justiciable controversy. In opposition , Richard Y opp Sr. fails to show the plaintiff canot establish a cause of action (see T. Y.S. 2d 139 (2d Dept , 2011); JI v New York State Dept. of Health 88 AD. 3d 290 , 929 see also Sysco Corp. v Town of Hempstead 133 AD.2d 751 520 N. Y.S.2d 40 (2d Dept , 1987J). The process server s affidavit , which indicated that the appellant was served in accordance with CPLR 308 (2), constituted prima facie evidence of proper service and the appellant' s conclusory denial of receipt of the summons and complaint was insufficient to raise any issue of fact (see, Genway Corp. v Elgut 177 AD2d 467; Colon v Beekman Downtown Hosp. 111 AD2d 841). Since the appellant failed to specifically refute the contents of the affidavit of service or to substantiate his conclusory allegation , the Supreme Cour properly denied his motion without conducting a hearing on the issue of serVice (see, Genway Corp. v Elgut, supra; Colon v Beekman Downtown Hosp., supra) Sando Realty Corp. v Aris 209 A. D.2d 682 619 N. Y.S. 2d 140 (2d Dept , 1994). Page 3 of 6 [* 4] Here , the plaintiffs process server states , in a November 29 2011 affidavit , he served the summons and verified complaint on Richard Y opp Sr. by delivering a copies of the papers to his spouse at their residence located at 1852 Relyea Drive , Merrick , New York. Richard Y opp Sr. admits that home is his residence. The process server also states he mailed copies of the summons and verified complaint addressed to Richard Y opp Sr. to that same address on November 29 2011 and December 5 , 2011. In opposition , Richard Y opp Sr. fails specifically to refute the contents of the affidavit of service or substantiate his own conclusory allegations. The Court determines the issue of service in favor of the plaintiff and finds a traverse is unecessar under the circumstances (see Remington Investments, Inc. v. Seiden 240 A. 2d 647 658 Y.S. 2d 696 (2d Dept , 1997)). Moreover , Richard Yopp Sr. served an answer on or about December 19 2011 , thus he failed to comply with CPLR 3211(e), that is to object to the service of process on the ground of lack of personal jurisdiction within 60 days of the. date of the pleading, to wit Febru 18 , 2012. Hence , the Court determines it has personal jurisdiction. The plaintiff ban made a prima facie showing of entitlement to judgment as a matter of law against Bauer by submitting proof of the existence of the underlying credit agreement , Bauer s personal guaranty of the obligations of the dental practice under that agreement , and the failure of the dental practice to make payment in accordance with the terms of the credit agreement (see HSBC Bank USA , N.A. v. Laniado 72 A. 3d 645 897 N. S.2d 514; Wolfv. Citibank , 34 AD. 3d 574 575 824 N. Y.S. 2d 176; Kensington House Co. v. Dram 293 AD.2d 304 304-305 , 739 N. Y.S.2d 572). Bauer failed to raise a triable issue of fact in opposition. " (S)omething more than a bald assertion of forgery is required to create an issue of fact contesting the authenticity of a signature " and Bauer s " affdavit was alone inadequate to raise an issue of fact necessitating a trial" (Banco Popular N.A. v. Victory Taxi Mgt. 1 N. Y.3d 381 384 774 Y.S. 2d 480 , 806 N. 2d 488; see Seaboard Sur. Co. v. Nigro Bros. , 222 AD. 2d 574 635 N. 2d 296) JPMorgan Chase Bank, N.A. v. Bauer 92 AD. 3d 641 , 641- 642 , 938 N. S.2d 190 (2d Dept 2012). This Court determines the plaintiff makes a prima facie showing of entitlement to judgment as a matter of law against Richard Y opp Sr. by submitting proof of the existence of the underlying agreement , and Richard Y opp Sr. ' s personal guaranty of the obligations of that agreement. The plaintiff also shows the failure of ACS Mechanical Inc. to make payment in accordance with the Page 4 of 6 [* 5] terms of the credit agreement , and Richard Yopp Sr. failure to pay as guaranteed. The Cour determines the guaranty, by its terms , was absolute and unconditional regardless ofthe validity or (see North Fork Bank v. ABC Merchant Services, Inc. , 49 enforceability of any other obligation AD. 3d 701 853 N. 2d 633 (2d Dept , 2008)). In opposition , Richard Yopp Sr. submits only a bare assertion of forgery, and fails to meet the legal requirement of showing a triable issue of fact. There is no showing of evidence in admissible form by Richard Y opp Sr. to require a handwriting expert to state with a reasonable degree of certainty that Richard Y opp Sr. signatue of the guarantee is genuine. Moreover , the defense allegation of forgery is not plead with particularity. Whle we have on occasion denied a plaintiff the benefit 6fthe expedited procedure set forth in CPLR 3213 on the ground that reference beyond the four corners of the instrment was necessar in order to comprehend fully the nature of the obligation to be enforced and thus raised a question as to whether the instruent was in fact one " for the payment of money only , where , as here , the referenced matter is merely repetitive of terms already contained within the instruent and does not alter the purely monetar nature of the obligation , there is no reason to delay judgment in the plaintiffs favor. We hold that the note and the guarantee constitute prima facie evidence of the obligation within the puriew of Interman Indus. Prods. v R. S. M. Electron Power (37 NY2d 151 , 155). This is paricularly true in the matter at bar where the defendant has expressly agreed in his guarantee " not to assert any defenses , claims , counterclaims or set-offs to any asserted right of or effort by Shearson to seek recovery under the terms of such Note , this Guarantee or Settlement Agreement" . The breadth of this waiver renders the prolongation of this action for the recovery of an undisputed debt utterly pointless (see, Key Bank v Munkenbeck 162 AD2d 503) Shearson Lehman Hutton v Myerson Kuhn 197 AD.2d 410 410- 411 602 N. Y.S.2d 396 (2d Dept , 1993J. The Court determines the plaintiff makes a prima facie showing of entitlement to judgment as a matter of law against Richard Y opp Sr. by showing Richard Y opp Sr. unconditionally guaranteed (see North Fork Bank v. ABC Merchant the payment of the obligations of ACS Mechanical Inc. Services, Inc. 49 A. D.3d 701 , 853 N. Y.S. 2d 633 (2d Dept , 2008J). In opposition , Richard Yopp Sr. proffers no evidence in admissible form to support his allegations that the damages were caused by the plaintiff or an unnamed par; by the culpable conduct of third paries and damages were contributed to in whole or in part (see National Westminster Bank, Page 5 of 6 U.S. A. v. Barrier [* 6] Technology Corp. 131 AD.2d supra). Accordingly, the motion is granted. The Clerk is directed to enter judgment pursuant to CPLR 5016 upon submission of a proposed judgment which complies with the mandates of CPLR 5018. So ordered. Dated: July 5, 2012 ENTER: FINAL DISPOSITION ENTERED JUL 03 2012 NAiiAU COUH' COUNTY CL!R)' S OfFIC( Page 6 of 6

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