Gallagher v Black

[*1] Gallagher v Black 2012 NY Slip Op 50483(U) Decided on March 15, 2012 Supreme Court, Nassau County Iannacci, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 15, 2012
Supreme Court, Nassau County

Thomas G. Gallagher and Michael P. Litzner, Plaintiff(s),

against

Theresa Black and Jeffrey Black, Defendant(s),



13929/11



PLAINTIFF ATTORNEY

Sarah Lichenstein, Esq.

Abrams, Fensterman, Fensterman, Eisman et al

1111 Marcus Avenue, Suite 107

Lake Success, New York 11042

516-328-2300

DEFENDANT ATTORNEY

Thomas Foley, Esq.

Foley Griffin, LLP

666 Old Country Road, Suite 305

Garden City, New York 11530

516-741-1110

Angela G. Iannacci, J.

The following papers read on this motion:

Notice of Motion/Order to Show Cause1

Affirmation in Opposition2

Reply Affirmation3

Reply Memorandum of Law4

The motion by the plaintiffs for summary judgment in lieu of complaint, is determined as hereinafter provided: [*2]

The plaintiffs and the defendants were 25% members in a limited liability company operating as a real estate brokerage. Disputes arose between the parties which resulted in lawsuits against each other. Those actions were settled and the settlement was memorialized in a settlement agreement dated March 22, 2011. As part of that agreement, the defendants executed a promissory note that stated as follows:

For Value Received, the undersigned, THERESA BLACK AND JEFFREY BLACK, having an address at 6 Parkview Court, Farmingdale, NY 11753 (individually and together, the "Debtor") hereby promise to pay to THOMAS G. GALLAGHER ("Gallagher") having an address at 2175 Jackson Place, North Bellmore, NY 11710 and MICHAEL P. LITZNER, having an address at 36 Winifred Drive, North Merrick, NY 11566 (together with Gallagher and any successors or assigns, the "Holder"), the principal sum of SIXTY THOUSAND AND 00/100 ($60,000.00) DOLLARS in lawful money of the United States, which principal sum shall be payable as follows:

Equal monthly installments of $2,000.00 each commencing upon the delivery to Debtor of a release of Debtor and of JAB Management II d/b/a as Century 21 Metro-Pro by Nassau Shores, LLC from all obligations concerning the tenant's obligations under the lease between MacDonald Family Partnership as landlord and Pro Realty Associates of Massapequa, Inc. as tenant for premises located at 5340 Merrick Road, Massapequa, New York and thereafter on the same day of each month until 30 months from the date hereof (the "Maturity Date") when the entire unpaid principal balance shall be due and payable, unless sooner paid, in accordance herewith (emphasis added).

There is no dispute that delivery of the release was made and that the defendants failed to make any payments pursuant to the note. The defendants only dispute is that the reference to the delivery of the release makes the note ineligible for determination under CPLR 3213.

A plaintiff establishes a prima facie entitlement to judgment as a matter of law under CPLR 3213 by submitting evidence of an instrument for the payment of a sum certain and the defendant's failure to make payments according to its terms (see New York Comm. Bank v Fessler, 88 AD3d 667 [2d Dept. 2011]; Premium Assignment Corp. v Utopia Home Care, Inc., 58 AD3d 709 [2d Dept. 2009]; Juste v Niewdach, 26 AD3d 416 [2d Dept. 2006]; AFCO Credit Corp. v Boropark Twelfth Ave. Realty Corp., 187 AD2d 634 [2d Dept. 1992]). Here, the plaintiffs established their entitlement by submission of the note which contains a sum certain and proof of non-payment.

The defendant's contention that the delivery of the release made the note "conditional" and therefore not proper for adjudication pursuant to CPLR 3213, is meritless. The delivery of the release, which is not denied, was merely the triggering mechanism for the repayment of the sum certain contained in the note and did not change the unconditional promise to pay (see Premium; Juste, supra; AFCO; Boland v Indah Kiat Finance (IV) Mauritius Ltd., 291 AD2d 432 [1st Dept. 2002]). The cases cited by the defendants are inapplicable here. In Bloom v Lugli (81 AD3d 579 [2d Dept. 2011]), the note was subject to the plaintiff's continued representation of the defendants as their counsel. In Ippolito v Family Medicine of Tarrytown and Ossining, LLP (46 AD3d 752 [2d Dept. 2007]), an outside source was required to determine the amount [*3]owed under the note, and in Bonds Financial, Inc. v Kestrel Tech., LLC (48 AD3d 230 [1st Dept. 2008]), the note was contingent upon the closing of real property in Maryland. There were no such contingencies in the note between the parties in this case.

The defendants' claims of fraud in the underlying settlement and the contention that the note is "inextricably intertwined" with the settlement are unavailing. The note is clear on its face. The defendants' remedies regarding the settlement itself must be addressed in a separate plenary action (see New York Comm. Bank supra).

Finally, the defendants claim that the plaintiffs failed to meet their prima facie burden because they failed to submit proof of the delivery of the release. While it is true that plaintiffs' counsel inadvertently omitted proof of delivery as Exhibit B to the motion, the affidavit by the plaintiff Thomas P. Gallagher averring to the delivery of the release was sufficient to meet the prima facie burden.

Accordingly, the motion is granted and the plaintiffs are entitled to a judgment against the defendants in the amount of $60,000.00 with interest at 11% per annum from August 10, 2011, plus a late charge in the amount of $80.00 as well as costs and disbursements.

Although the plaintiffs are entitled to attorney's fees pursuant to the note, because the note does not provide a sum certain for attorney's fees, a hearing must be held to determine the amount of reasonable attorney's fees to be awarded. Therefore, a hearing shall be held on April 30, 2012, at 10:30 a.m. in Part 12 of this court.

Submission of judgment shall await the determination of attorney's fees or upon the resolution or withdrawal of the claim for attorney's fees.

This constitutes the decision and order of the court.

Dated: March 15, 2012Angela G. Iannacci, J.S.C.

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