JPMorgan Chase Bank, N.A. v S.I. Wood Furniture Corp.

[*1] JPMorgan Chase Bank, N.A. v S.I. Wood Furniture Corp. 2012 NY Slip Op 50074(U) Decided on January 24, 2012 Supreme Court, Kings County Demarest, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 24, 2012
Supreme Court, Kings County

JPMorgan Chase Bank, N.A., Plaintiff,

against

S.I. Wood Furniture Corp., Ikram Said, a/k/a Ikram E. Said, a/k/a Ikram Essa Said, and Amal Said, a/k/a Amal E. Said, a/k/a Amal A. Said, Defendants.



2964/11



Attorney for Plaintiff:

Michael A. D'Emidio

Helfand & Helfand

350 Fifth Avenue, Suite 2826

New York, NY 10118

Attorney for Defendant:

Morris Fateha

2084 East 8th Street, 2nd Floor

Brooklyn, NY 11201

Carolyn E. Demarest, J.

In this action by plaintiff JPMorgan Chase Bank, N.A. (Chase) to recover monies based upon the default of defendants S.I. Wood Furniture Corp. (Wood), Ikram Said, a/k/a Ikram E. Said, a/k/a Ikram Essa Said (Ikram), and Amal Said, a/k/a Amal E. Said, a/k/a Amal A. Saie (Amal) (collectively, defendants) under a commercial line of credit and a concurrently executed personal guaranty, Chase moves, pursuant to CPLR 3212, for summary judgment in its favor as against defendants in the amount of $249,770, with accrued interest in the sum of $5,049.94, interest on $249,770 at its prime rate plus .50%, plus late fees in the sum of $1,935.25, and reasonable attorneys' fees and expenses.

By a Business Credit Application dated October 17, 2005, Wood applied to Chase for a Business Revolving Credit Line in the sum of $250,000.[FN1] The Business Credit Application set forth the business information of Wood and the personal financial information of Ikram and Amal, as Wood's president and vice-president, respectively. [*2]Under the section, entitled "Authorizing Resolution," Ikram, as the president of Wood, stated that at a corporate meeting. it was resolved that Wood could complete the Business Credit Application and that Wood would then "be obliged to fulfill all of the terms and conditions of the respective note and [Credit] Account Agreement which it shall thereafter receive." This section of the Business Credit Application was executed by both Ikram and Amal on October 17, 2005.

The Business Credit Application, under the section entitled "Personal Guarantee and Collateral Agreement," in pertinent part, provided as follows:

"I/we individually and personally, jointly and severally, absolutely and unconditionally guarantee to . . . Chase . . . payment of each and every obligation and liability of every nature and description of the Applicant to Chase whether now existing or arising in the future ( Obligations'). I agree that all Obligations will become immediately due without notice or demand from Chase if the Applicant at any time breaches any terms or conditions of the Obligations, note or [Credit] Account Agreement for which the Applicant has applied . . . This Personal Guarantee . . . is an individual personal liability whether or not signed below in an individual capacity or with any descriptive terms placed after the signer's name."

Under the section entitled "Acknowledgment Authorization" (which stated "Please read the Personal Guarantee and Collateral Agreement, then sign and date your Application"), the Business Credit Application, in pertinent part, stated:

"I/we the Applicant will receive the note or Account Agreement(s) corresponding to the product(s) for which the Applicant has been approved. Use of the proceeds by deposit or otherwise, or endorsement, constitutes full acceptance of the note and terms specified in this Application, the approval notification and/or applicable agreement(s) . . . By signing below, I/we also individually and personally jointly and severally agree to the terms of the Guarantee and Collateral Agreement which appear in the Personal Guarantee and Collateral Agreement Section of this Application."

This section of the Business Credit Application was also executed by both Ikram and Amal on October 17, 2005.

On or about December 1, 2005, Wood's application was approved by Chase for a line of credit in the sum of $250,000. The terms and conditions of the Business Revolving Credit Line are set forth in the Business Revolving Credit Account Agreement (Credit Account Agreement).

Pursuant to the terms and conditions of the Credit Account Agreement, Wood was to be provided with $250,000 in business revolving credit with checks needed to access the line of credit mailed to it. The Credit Account Agreement provided that "[b]y signing the application for a Credit Line and using the checks provided by [Chase, Wood] has agreed to bound by this . . . Credit Account Agreement."

Paragraph 1 of the Credit Account Agreement stated that in consideration of its terms and conditions, Chase agreed to make loans to Wood up to but not exceeding its credit line. Paragraph 2 of the Credit Account Agreement further stated that Wood agreed to pay an annual fee of $2,500 for the first year, with the annual fee waived thereafter. Paragraph 3 of the Credit Account Agreement set forth that Chase was required to repay the amount advanced with interest at the rate of Chase's prime rate plus .50% per annum, calculated at 360 days per calendar year. Paragraph 3 further set forth that principal was due and payable, on the date provided in Chase's invoice, in monthly [*3]installments equal to 1/36 of the outstanding loans as of the date of the last loan made prior to the due date of the installments, and in full as otherwise required by Chase or pursuant to the terms of that agreement, and that payments were due as described by a periodic statement each month. Paragraph 3 also provided for late fees by stating:

"Any principal or interest which is not paid within 10 days after its due date (whether as stated by acceleration or otherwise) shall be subject to a late payment charge of 5% of the total payment due, in addition to the payment of interest. [Wood] agrees to pay and stipulates that 5% of the total payment due is a reasonable amount for a late payment charge. [Wood] shall pay the late payment charge upon demand by [Chase] or, if billed, within the time specified."

In addition, paragraph 3 of the Credit Account Agreement provided for the recovery of attorneys' fees and expenses by stating:

"In addition to all principal, interest and fees owing under this Agreement, [Wood] and each guarantor agrees to pay upon demand (a) all reasonable costs and expenses incurred by [Chase] and all owners and holders of the indebtedness evidenced by this Agreement in collecting the amount owing under this Agreement through probate, reorganization, bankruptcy or any other proceeding, and (b) costs, expenses and reasonable attorneys' fees if and when this Agreement is placed in the hands of an attorney for collection or enforcement."

Paragraph 7 of the Credit Account Agreement provided that Wood's failure to make any payment when due would constitute an event of default. Paragraph 7 of the Credit Account Agreement, in pertinent part, further stated:

"If any Event of Default occurs, then [Chase's] obligation to make Loans shall immediately terminate, and the Loans together with accrued interest thereon shall be immediately due and payable without notice of intent to accelerate, notice of acceleration or any other notice, presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived . . ."

Wood made all payments due through August 1, 2010. It is undisputed that Wood then failed to make the payment due on September 1, 2010, or to pay any subsequent installments that have now become due, and that such failure of Wood to make such payment due on September 1, 2010 constituted an act of default under the Credit Account Agreement. As a result, Chase, pursuant to paragraph 7 of the Credit Account Agreement, elected to accelerate the balance due and to declare all amounts due immediately due and payable to it. Chase also demanded that Ikram and Amal honor the guarantees given by them under the "Personal Guarantee and Collateral Agreement" section of the Business Credit Application (the Guaranties) and perform the obligations of Wood, but they ignored this demand and refused to do so.

Consequently, on February 8, 2011, Chase filed this action against defendants. Chase's complaint seeks recovery from Wood for the accelerated balance due, plus interest, late fees, and reasonable attorneys' fees based on the Credit Account Agreement, and also seeks to recover this sum from Ikram and Amal, individually, based on the Guaranties. Defendants interposed a verified answer, which contains general denials and 22 affirmative defenses.

In support of its instant motion for summary judgment, Chase has annexed the Business Credit Application, the Credit Account Agreement, and the sworn affidavit of Karl Reed, an assistant vice-president of its Portfolio Management Center. Mr. Reed, in [*4]his affidavit, attests that he has access to Chase's business records, maintained in the ordinary course of regularly conducted business activity, including the business records for and relating to Wood. He asserts that he has made his affidavit based upon his review of those records relating to Wood's loan and from his own personal knowledge of how they are kept and maintained. He explains that the loan records for Wood are maintained by Chase in the course of its regularly conducted business activities and are made at or near the time of the event, by or from information transmitted by a person with knowledge. He further sets forth that as to Chase's business records that consist of documents created by third parties, Chase relies on the accuracy of such records in conducting its business and collecting loans.

Mr. Reed recounts Wood's entry into the Credit Account Agreement and Ikram and Amal's execution of the Guaranties on October 17, 2005. He attests that Wood has failed to pay the sums due under the terms of the Credit Account Agreement and is in default. He annexes a copy of the payment history for the Credit Account Agreement, confirming that Wood has not made any payments on the Credit Account Agreement since August 1, 2010. The attached payment history reflects payments made, advances taken under the Credit Account Agreement, and the assessment of fees. He asserts that Ikram and Amal have failed to cure the default of Wood pursuant to the Guaranties and that they are in default under the Guaranties.

Mr. Reed sets forth that as of January 25, 2011, there is due and owing from Wood to Chase the principal balance of $249,770, interest of $5,049.94, which continues to accrue at the annual rate of Chase's prime rate plus .50%, and late fees and costs of $1,935.25. He further asserts that Chase has incurred attorneys' fees and legal expenses to enforce the terms of the Credit Account Agreement.

The signature of Mr. Reed, on his affidavit, was notarized in the State of Arizona on May 24, 2011 by C. Hake, a notary public for the State of Arizona. In addition, in a "Certificate of Conformity," Alysse Medina, Esq. sets forth that she is an attorney duly licensed to practice law in the State of Arizona, and that she affirms under the penalty of perjury and certifies that she witnessed the signature of C. Hake as applied to the affidavit annexed to such certificate, which was signed and dated on May 24, 2011, and that the manner in which same was signed was, and is, in accordance with, and conforms to, the laws for taking oaths and acknowledgments in the State of Arizona.

On a motion for summary judgment, the movant must make a prima facie showing, by tendering evidentiary proof in admissible form, of its entitlement to judgment as a matter of law (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). After the movant has made this prima facie showing, the burden shifts to the opposing party to demonstrate the existence of a genuine material triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman, 49 NY2d at 562).

In opposition to Chase's motion, defendants argue that Chase, by its submissions, has failed to make a prima facie showing of entitlement to judgment as a matter of law, and that they also have raised defenses which give rise to material issues of disputed facts, making summary judgment inappropriate.

In support of their assertion that Chase has failed to make the requisite prima facie showing to entitle it to summary judgment, defendants contend that Chase failed to submit competent evidence in admissible form pursuant to CPLR 2309 (c). CPLR 2309 (c) provides:

"(c) Oaths and affirmations taken without the state. An oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by such [*5]certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if such deed had been acknowledged before the officer who administered the oath or affirmation."

Defendants assert that Mr. Reed's affidavit may not be admitted into evidence because the certificate of conformity by Ms. Medina, Esq. is defective. Specifically, they maintain that the certificate of conformity failed to state the qualification of C. Hake, and show whether he/she is qualified and authorized to make such certification. They also state that Chase has not established that Ms. Medina, Esq. is qualified to make a certificate pursuant to Real Property Law § 239 and that she is fully acquainted with the laws of Arizona. They argue that Mr. Reed's affidavit is, therefore, inadmissible into evidence, and the remaining evidence is insufficient to establish that there is no triable issue of material fact or that Chase is entitled to summary judgment as a matter of law.

Defendants' argument is without merit. It is well established that an affidavit which lacks the certificate authenticating the authority of the notary who administered the oath, as required by CPLR 2309 (c), may be considered on a summary judgment motion despite this technical defect since it is not "a fatal defect," but a mere defect in form which can be given nunc pro tunc effect once properly acknowledged (Smith v Allstate Ins. Co., 38 AD3d 522, 523 [2007]; see also CPLR 2001; Hall v Elrac, Inc., 79 AD3d 427, 428 [2010]; Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, 68 AD3d 672, 673 [2009]; Falah v Stop & Shop Cos., Inc., 41 AD3d 638, 639 [2007]; Sparaco v Sparaco, 309 AD2d 1029, 1031 [2003]; Nandy v Albany Med. Ctr. Hosp., 155 AD2d 833, 834 [1989]; Pavon v 19th St. Assoc., LLC, 17 Misc 3d 1125[A], 2007 NY Slip Op 52144 [U], *8 [Sup Ct, NY County 2007]). Moreover, it has been specifically held that when the person administering the oath for an out-of state affidavit is a notary, the affidavit does not require a certificate authenticating the notary's authority (see Ford Motor Credit Co. v Prestige Gown Cleaning Serv., 193 Misc 2d 262, 263 [2002]; Firstcom Broadcast Servs. v New York Sound, 184 Misc 2d 524, 525 [2000]).

Here, as noted above, Mr. Reed's affidavit was, in fact, notarized, and it contains the signature and stamp of the notary public (see Ford Motor Credit Co., 193 Misc 2d at 263; Firstcom Broadcast Servs., 184 Misc 2d at 525). Furthermore, the certificate of conformity by Ms. Medina, Esq. substantially complies with the requirements of CPLR 2309 (c).

In any event, defendants have not disputed the authority of the notary public or the truthfulness and accuracy of any of the statements made in Mr. Reed's affidavit, nor have they demonstrated any prejudice whatsoever resulting from the purported technical defect alleged by them (see Sparaco, 309 AD2d at 1031). Moreover, inasmuch as the content of the documents submitted, as opposed to their form, is what is critical to the determination of this motion, defendants cannot be permitted to seize upon any technical requirement of CPLR 2309 (c) to create delay and avoid summary judgment (see Falah, 41 AD3d at 639; Smith, 38 AD3d at 523; Nandy, 155 AD2d at 834).

Defendants also argue that Mr. Reed's affidavit does not demonstrate his personal knowledge of the matters asserted. Defendants state that Mr. Reed does not state that he has such personal knowledge. Defendants also claim that Chase should have produced Shirley Herring's affidavit since she signed the Credit Account Agreement. They also state that Mr. Reed's affidavit is deficient because he has not attached or described any of the books and records that he may have reviewed, or rendered any such books and records which he may have reviewed admissible as evidence. [*6]

Defendants' argument is rejected. The affidavit of a custodian of the records based on records maintained by a corporation in the ordinary course of business may constitute admissible evidence (see Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433 [2004]; DeLeon v Port Auth. of NY & N.J, 306 AD2d 146, 146 [2003]; First Interstate Credit Alliance v Sokol, 179 AD2d 583, 584 [1992]). Furthermore, "[i]t is well settled that a business entity may admit a business record through a person without personal knowledge of the document, its history or its specific contents where that person is sufficiently familiar with the corporate records to aver that the record is what it purports to be and that it came out of the entity's files" (DeLeon, 306 AD2d at 146; see also First Interstate Credit Alliance, 179 AD2d at 584; Rose Med. Acupuncture Servs. P. C. v Specialized Risk Mgt., 4 Misc 3d 1027[A], 2004 NY Slip Op 51078 [U], *2-3 [City Ct, Mount Vernon 2004]).

Here, as discussed above, Mr. Reed, is the assistant vice-president of the Portfolio Management Center of Chase, and he attests that he has personal knowledge of how Chase's business records are kept, and that his affidavit is based upon his review of Chase's business records which are maintained in the ordinary course of its business. He, thus, has demonstrated that he is sufficiently familiar with the business records submitted to aver that they are what they purport to be and that they came out of Chase's files, thereby supporting the validity and authenticity of these documents (see Hospital for Joint Diseases, 11 AD3d at 433; DeLeon, 306 AD2d at 146; First Interstate Credit Alliance, 179 AD2d at 584).

While defendants rely upon the case of JP Morgan Chase Bank, N.A. v Moto-Tex, Inc. (Sup Ct, Kings County, index No. 15805/10, Apr. 4, 2011) in support of their assertion that Mr. Reed's affidavit should be rejected, such reliance is misplaced. Unlike in that case, where the affiant did not even refer to the transaction history or attach any of the records reviewed, Mr. Reed refers to the attached payment history and the attached Business Credit Application, Credit Account Agreement, and Guaranties.

Defendants additionally argue that the Business Credit Application, the Credit Account Agreement,[FN2] and the Guarantee provision contained within the body of the Credit Account Agreement are not authenticated and cannot be rendered admissible as evidence. Defendants contend that they fail to contain a certificate of acknowledgment that raise a presumption of due execution. Defendants further state that CPLR 3015 (d), which provides that "[u]nless specifically denied in the pleadings each signature on a negotiable instrument is admitted," does not allow the admission of the signatures of Ikram and Amal on the Guaranties and also does not establish their signatures as that of the borrower, Wood.

This argument is unavailing. No certificate of acknowledgment is necessary to authenticate Ikram and Amal's signatures or their signatures on behalf of Wood. Neither Ikram or Amal deny signing the Business Credit Application or that they were authorized to execute it on behalf of Wood. Moreover, it has been held that even a naked denial of execution of a guarantee is insufficient to raise an issue of fact (see e.g. Brown Bark I, L.P. v Imperial Dev. & Constr. Corp., 65 AD3d 510, 511—512 [2009] [although defendant claimed that her signature on guarantee was a forgery, "her bare, self-serving [*7]claim to that effect was insufficient to raise a triable issue of fact"]; Banco Popular N. Am. v Victory Taxi Mgt., 299 AD2d 223, 224 [2002] [summary judgment in lieu of complaint properly granted since defendant's "naked denials that she had signed the subject guarantees were insufficient to raise any triable issue as to whether the signatures on the guarantees, purporting to be hers, had been forged"], affd 1 NY3d 381 [2004]). Therefore, defendants have failed to raise any genuine issue of fact with respect to the authenticity of the documents submitted.

Consequently, since the court thus finds that Chase, by its submissions, has made a prima facie showing of its entitlement to judgment as a matter of law, the burden shifted to defendants to raise a triable issue of fact with respect to their alleged defenses (see Zuckerman, 49 NY2d at 562). A party opposing a motion for summary judgment must assemble, lay bare, and reveal its proof, and demonstrate the existence of a genuine issue of fact that requires a trial of the action (see Alvarez, 68 NY2d at 324; Northside Sav. Bank v Sokol, 183 AD2d 816, 816 [1992]; Sony Corp. of Am. v American Express Co., 115 Misc 2d 1060, 1065 [1982]). In doing so, the party "must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which [it] rests [its] defense" or "[it] must demonstrate [an] acceptable excuse for [its] failure to meet th[is] requirement" (Zuckerman, 49 NY2d at 562). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" for this purpose (id.). Bare unsupported denials or averments merely stating conclusions of fact or law are insufficient to defeat a motion for summary judgment (see Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 290 [1973]; Gould v McBride, 36 AD3d 706 [1971], affd 29 NY2d 768 [1971]).

In attempting to raise a triable issue of fact, Ikram and Amal have submitted their own affidavits, in which they each claim that they, on behalf of Wood, completed the Business Credit Application only for the purpose of determining Wood's eligibility for a loan, but that they never agreed to personally guarantee any corporate loan. They state that they chose the loan in question on the understanding that a personal guarantee was not involved. They further state that the Business Credit Application was typed in fine print, and contained complex terms which they did not fully understand, and that they, therefore, relied on Chase to properly administer any resulting loan.

Such a claim by Ikram and Amal, however, is specifically belied by the express terms of the Business Credit Application, which (as set forth above) explicitly stated that they "individually and personally" unconditionally guaranteed the loan to Wood by Chase, and that this personal guarantee was "an individual personal liability."

While Ikram and Amal claim that the terms of the Business Credit Application were in fine print, this does not provide an excuse for them not to read it prior to signing it and agreeing to be bound by its terms. A defendant cannot invalidate a contract based merely on his or her failure to accurately, sufficiently, or comprehensively read its terms (see Florence v Merchants Cent. Alarm Co., 51 NY2d 793, 795 [1980]; Pimpinello v Swift & Co., 253 NY 159, 162-163 [1930] ["the signer of a deed or other instrument . . . is conclusively bound thereby. That his mind never gave assent to the terms expressed is not material . . . If the signer could read the instrument, not to have read it was gross negligence; if he could not read it, not to procure it to be read was equally negligent; in either case the writing binds him"]; Sofio v Hughes,162 AD2d 518, 519 [1990]). Thus, any negligence by Ikram and Amal in failing to read the Business Credit Application does not relieve them of the obligations which they undertook in signing the Guaranties, which induced Chase to advance the sums loaned (see Marine Midland Bank, N .A. v Dino & [*8]Artie's Automatic Transmission Co., 168 AD2d 610, 611 [1990]; Gillman v Chase Manhattan Bank,135 AD2d 488, 491 [1987], affd 73 NY2d 1 [1988]).

Notably, the Court of Appeals has observed that "where individual responsibility is demanded the nearly universal practice is that the officer signs twice once as an officer and again as an individual" (Salzman Sign Co. v Beck,10 NY2d 63, 67 [1961]). Here, Ikram and Amal executed the Business Credit Application twice, once in their corporate capacity and again in their individual capacities. This is consistent with their intention to be held liable as guarantors in their personal capacities as set forth in the explicit terms of the Business Credit Application. Moreover, as set forth above, and Ikram and Amal's two signatures are contained in different sections of the Business Credit Application, differentiating the corporate and individual capacities in which they signed.

While Ikram and Amal claim that they believed that they were signing the Guaranties contained in the Business Credit Applications as officers of Wood, in PNC Capital Recovery v Mechanical Parking Sys. (283 AD2d 268, 270-271 [2001]), the court noted that "an interpretation that [an individual defendant] signed the Guaranty solely in his capacity as president of the corporation would compel the illogical conclusion that the purpose of the Guaranty was to provide that in case of [the corporate defendant's] default, the company would guaranty its own indebtedness, rendering the entire Guaranty meaningless." Such reasoning applies equally to the case here (see Two Guys from Harrison-N.Y. v S.F.R. Realty Assoc., 63 NY2d 396, 403 [1984] ["(i)n construing a contract, one of a court's goals is to avoid an interpretation that would leave contractual clauses meaningless"]).

Moreover, Ikram and Amal's actual intent is irrelevant to the manifestation of their objective intent to enter into the Guaranties, which their signatures evidenced. A profession of contradictory personal intent is insufficient to override a physical manifestation of assent (see Mencher v Weiss, 306 NY 1, 7-8 [1953], citing Hotchkiss v National City Bank of New York, 200 F 287, 293 [SD NY 1911], affd 201 F 664 [2d Cir 1912], affd sub nom. National City Bank v Hotchkiss, 231 US 50 [1913]). Thus, Ikram and Amal's claim that they thought they were was signing in their corporate capacity is without effect because their signatures are sufficient manifestation of their assent to the provisions of the Guaranties. Ikram and Amal's assertion that they did not intend to personally guarantee the loan to Wood contradicts the explicit provisions of the Guaranties to which they agreed and cannot prevail over such express written agreement (see Mencher, 306 NY at 7-8; Hotchkiss, 200 F at 293). Any other conclusion would countenance the retrospective invalidation of duly-executed agreements, thus undermining the integrity of all contractual agreements.

Upon executing the written Business Credit Application, defendants became conclusively bound by its terms and the terms of the Credit Account Agreement incorporated therein (see Pimpinello, 253 NY at 162). Where the intention of the parties is fully determinable from the language of the agreement and an agreement is unambiguous, extrinsic evidence is inadmissible to vary its terms (see Long Is. R.R. Co. v Northville Indus. Corp., 41 NY2d 455, 461 [1977]).

Defendants also argue that they should not be bound by the Credit Account Agreement because when they completed the Business Credit Application, it did not contain all of the terms as expected by them, and that after its submission, Chase supplemented it with the terms set forth within the Credit Account Agreement which was not signed by them. They point out that the Credit Account Agreement is only signed on behalf of Chase by the Shirley Herring, in her capacity as a first vice-president. [*9]

Defendants' argument must be rejected since the Business Credit Application expressly provided that use of the proceeds of the loan constituted full acceptance of the terms specified in the Credit Account Agreement which they would receive, and it is undisputed that Wood used the proceeds of the loan pursuant to the Credit Account Agreement for nearly five years prior to its default. Thus, the fact that the Credit Account Agreement does not contain defendants' signatures is of no moment since the Business Credit Application, which expressly incorporated and assented to the terms of the Credit Account Agreement, does contain their signatures.

Ikram and Amal further assert that they never received a letter from Chase notifying them in their alleged capacity as guarantors of any alleged defaults and that it would be accelerating the loan. They argue that they did not have a meaningful opportunity to cure Wood's default. This argument is unavailing. As discussed above, Ikram and Amal, in the Business Credit Application, specifically agreed that upon Wood's breach of any terms of the Credit Account Agreement, all obligations would "become immediately due without notice or demand by Chase."

Defendants additionally argue that they never agreed that in the event of a default, Chase could accelerate the maturity of the loan. They assert that this was not a term within the Business Credit Application, and that even if this term was in the Credit Account Agreement, they never signed the Credit Account Agreement and were not bound by it.

This argument is rejected. As set forth above, paragraph 7 of the Credit Account Agreement specifically gave Chase the right to accelerate the loans without notice of acceleration and defendants expressly waived the right to such notice. While defendants claim that this right to accelerate was not contained in the Business Credit Application, as previously noted, the Business Credit Application expressly incorporated and assented to the terms of the Credit Account Agreement, does contain their signatures.

Ikram and Amal also assert that Chase extended credit to Wood even though Wood's finances would render it unable to repay the loan. They state that Chase was not concerned about Wood's financial ability to repay the loan since it intended to hold them liable as personal guarantors "even though [their] intentions were clear that [they] d[id] not desire to be . . . guarantor[s]." They contend that Chase knew or should have known that Wood was not financially sound. They argue that under these circumstances, Wood had an obligation not to extend the credit, and by extending such credit, it breached this obligation.

This argument is unavailing. Wood applied for and accepted the benefits of the loan by Chase for nearly five years. A challenge by defendants of their own creditworthiness is thus an improper basis for denial of Chase's motion for summary judgment.

Thus, defendants, in response to Chase's motion, have submitted no evidence to dispute their entry into the Credit Account Agreement and the Guaranties, the validity of the documents submitted, the amount of the debt owed, and their failure to make payment of the amount claimed to be due. "Facts appearing in the movant's papers which the opposing party does not controvert, may be deemed to be admitted" (Kuehne & Nagel v Baiden, 36 NY2d 539, 544 [1975]; see also Arteaga v 231/249 W 39 St. Corp., 45 AD3d 320, 321 [2007]; Tortorello v Carlin, 260 AD2d 201, 206 [1999]). No admissible competent evidence is submitted by defendants indicating that the allegations set forth in the verified complaint and Mr. Reed's affidavit are incorrect.

Therefore, the court concludes that defendants have failed to raise any triable issue [*10]of fact refuting Chase's prima facie showing of Wood's default under the Credit Account Agreement and Ikram and Amal's obligation to perform pursuant to the Guaranties. Defendants have completely failed to come forward with a single competent or admissible fact to support their conclusory denial that they are in default of the line of credit extended to Chase by Wood. Furthermore, while defendants' answer alleges 22 affirmative defenses, defendant, in their opposition papers, do not attempt to support any of these alleged defenses other than the defenses discussed above, which the court has found to be completely lacking in merit.

Defendants do not dispute that Wood has defaulted under the terms of the Credit Account Agreement, which renders it liable to Chase for all amount due thereunder. In addition, "[w]here . . . a creditor seeks summary judgment upon a written guaranty, the creditor need prove no more than an absolute and unconditional guaranty, the underlying debt, and the guarantor's failure to perform under the guarantee" (Kensington House Co. v Oram, 293 AD2d 304, 304-305 [2002]; see also North Fork Bank Corp. v Graphic Forms Assoc., Inc., 36 AD3d 676, 676 [2007]). Here, the Guaranties are unconditional and explicit in their terms providing that Ikram and Amal are absolutely liable for the full performance of all monetary obligations incurred by Wood.

Thus, Chase is entitled to recover as against Wood, as the obligor, and Ikram and Amal, as guarantors, the amount of $249,770, plus accrued interest, late fees in the amount of $1,935.25, and its reasonable attorneys' fees and expenses [FN3] pursuant to paragraph 3 of the Credit Account Agreement. Summary judgment in Chase's favor is, therefore, mandated (see CPLR 3212 [b]).

The court notes that defendants also contend that Chase's motion for summary judgment is premature because discovery is necessary to determine what financial documentation Chase demanded to determine whether to extend the loan and what Chase's process was in monitoring and administering the loan. Defendants claim that discovery is also necessary to determine which books and records Mr. Reed may have reviewed and to determine which loan terms were agreed upon by the parties upon the execution of the Business Credit Application. They state that documents, such as statements, payment history, and recorded conversations should be produced by Chase. There is no claim, however, that Chase's records are inaccurate or that defendants have made payments that are not accounted for.

CPLR 3212 (f) provides that if it appears from affidavits submitted in opposition to the motion for summary judgment "that facts essential to justify opposition may exist but cannot be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had and may make such other order as may be just." However, "[m]ere hope and speculation that additional discovery might uncover evidence sufficient to raise a triable issue of fact is not sufficient" to warrant denial of a motion for summary judgment (Sasson v Setina Mfg. Co., Inc., 26 AD3d 487, 488 [2006]). The granting of a summary judgment motion should not be postponed to allow for discovery where the proponent of the additional discovery has failed "to demonstrate that the discovery sought would produce relevant evidence" (Frith v Affordable Homes of Am., 253 AD2d 536, 537 [1998]). [*11]

"A grant of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence" (Bailey v New York City Tr. Auth., 270 AD2d 156, 157 [2000]; see also Freiman v JM Motor Holdings NR 125-139, LLC, 82 AD3d 1154, 1156 [2011]; Dempaire v City of New York, 61 AD3d 816, 817 [2009]; Conte v Frelen Assoc., LLC, 51 AD3d 620, 621 [2008]; Lopez v WS Distrib., Inc., 34 AD3d 759, 760 [2006]; Ruttura & Sons Constr. Co. v Petrocelli Constr., 257 AD2d 614, 615 [1999]). "A party's mere hope that further discovery will reveal the existence of triable issues of fact is insufficient to delay determination on the issue of summary judgment" (Lambert v Bracco, 18 AD3d 619, 620 [2005]; see also Wyllie v District Attorney of County of Kings, 2 AD3d 714, 717 [2003]; Weltmann v RWP Group, 232 AD2d 550, 551 [1996]).

Here, defendants have failed to show how any such discovery could provide evidence relevant to any viable defense. Thus, postponement of Chase's motion, pending discovery pursuant to CPLR 3212 (f) is not warranted.

Finally, defendants argue that Chase failed to serve them with the Request for Judicial Intervention (which is attached to Chase's notice of motion) along with its motion and that this warrants denial of Chase's motion. While pursuant to Uniform Rules for Trial Courts (22 NYCRR) 202.6 (a), "[a] request for judicial intervention must be submitted, in duplicate, on a form authorized by the Chief Administrator of the Courts, with proof of service on the other parties to the action" except where the application is ex parte, such a technical defect, which has not prejudiced defendants in any way, does not preclude the granting of Chase's motion for summary judgment (see CPLR 2001).

Accordingly, Chase's motion for summary judgment in its favor is granted for the principal amount of $249,770 and late fees in the amount of $1,935.25, plus accrued interest and reasonable attorneys' fees and expenses incurred in this litigation, which amounts shall be determined by the court upon further affidavits and documentation, which are to be submitted by Chase on notice together with a proposed judgment.

This constitutes the decision, order, and judgment of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1:In addition, by a General Security Agreement dated November 9, 2005, Wood pledged and assigned to Chase all personal property and fixtures to secure the payment and performance of its obligations.

Footnote 2:While the Credit Account Agreement annexed by Chase appears to be missing a page containing paragraphs 14 through 17, it does not appear that these paragraphs contain any terms which would alter defendants' obligations or that are relevant to the disposition of this motion.

Footnote 3:It is noted that Chase has submitted a bill dated June 16, 2011 for attorneys' fees and disbursements in the total amount of $4,234.20. However, the reasonableness of such bill has not been established.