Brown Bark III, LP v Harewood
Decided on April 6, 2012
City Court of Mount Vernon
Brown Bark III, LP, as successor in interest, to Bank of America, N.A., Plaintiff,
Ian Harewood, Defendant.
John Manfredi, Esq.
Manfredi Law Group, PLLC
Attorney for Plaintiffs
302 East 19th Street, Suite 2A
New York, NY 10003
Defendant Pro Se
1027 East 212th Street
Bronx, New York 10469
Adam Seiden, J.
In this action seeking to recover the balance due under a Bank of America Continuing and Unconditional Guaranty, plaintiff, successor in interest to Bank of America, now moves for summary judgment against the defendant, Ian Harewood.
In support of the motion for summary judgment, the plaintiff has submitted the affidavit of Denise Rivera, plaintiff's account manager. She affirms that she has knowledge of the facts and circumstances concerning this action based on the records reviewed in the ordinary course of business. Ms. Rivera states that upon information and belief, the defendant resides at 1027 East 212th Street, Bronx, NY 10469. She affirms that based upon the records reviewed, Island Mann, Inc. and Bank of America, N.A. entered into a loan agreement under account No.81202400 dated November 2, 2006 for the sum of $5,000.00 at an interest rate of Prime + 6.50 percentage points. The agreement was attached to the motion papers as Exhibit A. She states that as collateral for the payment in case of a default by Island Mann, Inc., Ian Harewood duly acknowledged and delivered to Bank of America N.A. a personal guarantee. The agreement was attached to the motion papers as Exhibit B. Ms. Rivera affirms that Island Mann, Inc. defaulted on October 2, 2007 and that Ian Harewood defaulted under [*2]his obligation as guarantor on that same date.[FN1] Ms. Rivera further states that the loan agreement was assigned and transferred to the plaintiff for value on May 7, 2008. A copy of the assignment was attached to the motion papers as Exhibit C. Ms. Rivera maintains, upon information and belief, that Island Mann, Inc. is a defunct corporation, and accordingly, Ian Harewood is personally liable for the balance of $4,166.67 plus interest at 9% per annum from October 2, 2007 plus costs and disbursements.
Plaintiff has also submitted the affirmation of its attorney, John Manfredi. Mr. Manfredi moves to amend the plaintiff's name on the caption of the summons and complaint. Mr. Manfredi affirms that the correct spelling is "Brown Bark III, LP", not "Brown Bark I, LP", as listed on summons and complaint.
Plaintiff's counsel also argues that defendant has failed to raise a triable issue of fact and does not dispute owing the debt or the amount of the debt. Though the defendant stated in his Answer and open court that he resides in the Bronx, and not Mt. Vernon, counsel argues that defendant was served via suitable age at his last known address. According to the affidavit of service, attached as Exhibit F, service was made upon defendant by delivering copies of the summons and verified complaint to a person of suitable age and discretion, "Mr. Harewood, Father" on May 17, 2011 at 6:21pm at 554 South 10th Avenue, Mt. Vernon, NY. Plaintiff argues that since the defendant failed to move to dismiss this action for lack of personal jurisdiction within 60 days of the service of the pleading, his personal jurisdiction defense is waived.
In his answer dated July 15, 2011, defendant stated that he lives at 1027 E. 212th Street in the Bronx and asked plaintiff to "send all matters pertaining to this case to Bronx County Court." Defendant did not dispute that he entered into a personal guaranty agreement with Bank of America N.A., nor did he dispute the amount due and owing pursuant to the loan agreement.
It is well settled that in order to obtain summary judgment, the movant must establish its cause of action sufficiently to warrant a court's directing judgment in its favor as a matter of law. The party opposing the motion must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which the opposing claim rests (Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966 (1988); Zuckerman v City of New York, 49 NY2d 557 (1980)).
Though the pro se defendant has not filed opposition papers to this motion, the Court finds that the plaintiff has failed to establish its cause of action sufficiently to warrant a judgment in its favor as a matter of law. Plaintiff has failed to present sufficient proof that the defendant was served with process at his last known address. Both the loan agreement and guaranty provide that notices for the Borrower and Guarantor are to be sent to Ian Harewood, 738 E221st Street, Bronx, NY 10467; neither document reference a Mt. Vernon address for defendant. In addition, the defendant has stated in his Answer and open court that he resides in the Bronx, and pursuant to the Court file, provided documentation demonstrating a Bronx address in court on October 6, 2011. Further, plaintiff's account manager states in her Affidavit of [*3]Merit that defendant "resides at 1027 East 212th Street, Bronx, NY 10469." Plaintiff has failed to present any proof establishing that defendant's last known address was in Mt. Vernon at the address of service of process. Plaintiff merely offers the statement of its counsel that process was served at last known address; counsel's statement without documentary support is insufficient.
Accordingly, the motion for summary judgment is denied without prejudice to renew with sufficient proof of defendant's address at the time of service of the summons and complaint.
This constitutes the Decision and Order of this Court.
The Court considered the following papers on this motion: Notice of Motion dated November 21, 2011; Affidavit in Support, dated June 27, 2011; Affirmation in Support, dated November 21, 2011; Exhibits A-F.
Dated:April 6, 2012
Mount Vernon, New York
HON. ADAM SEIDEN
Associate City Judge of Mount Vernon
Footnote 1:This decision does not reach the issue of whether a debtor and guarantor of the debt can default at the same time.