Sabatino v Galeotafiore

[*1] Sabatino v Galeotafiore 2012 NY Slip Op 52039(U) Decided on October 26, 2012 Supreme Court, Queens County Markey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 26, 2012
Supreme Court, Queens County

Calogero Sabatino, Plaintiff,

against

Louis Galeotafiore et al., Defendant.



27200/2011



For the Plaintiff: Joseph Edward Brady, Esq., 101-02 159th Ave., Howard Beach, NY 11414

For Defendants Louis Galeotafiore, Marie Galeotafiore, Gallo Consulting, and Galeo Provisions, Inc.: Charles Chaim Liechtung, Esq., 30 South Central Ave., Valley Stream, NY 11580

Charles J. Markey, J.

Plaintiff in this breach of contract action seeks to recover monies due pursuant to a written agreement. On January 8, 2006, defendant Louis Galeotafiore requested that plaintiff Calogero Sabatino lend $50,000, to Gallo Consulting Corporation (GCC). In connection with this loan, defendant Louis Galeotafiore prepared a promissory note and personally guaranteed the loan. The loan agreement provided that Louis Galeotafiore was obligated to repay plaintiff by January 8, 2007. The loan bore interest at the rate of twelve percent per year. The loan agreement was signed by both Louis Galeotafiore and the plaintiff. [*2]

Plaintiff provided a check in the sum of $50,000.00 from his personal account, and the check was deposited with GCC. Marie Galeotafiore is the wife of Louis Galeotafiore and is president of GCC. Defendant Louis Galeotafiore paid back $8,500.00 of the loan, however, no further payments have been made.

The Cross Motion for Summary Judgment

To establish prima facie entitlement to judgment as a matter of law with respect to a promissory note, a plaintiff must show the existence of a promissory note, executed by the defendant, containing an unequivocal and unconditional obligation to repay, and the failure by the defendant to pay in accordance with the note's terms (see, Gullery v Imburgio, 74 AD3d 1022 [2nd Dept. 2010]; Superior Fid. Assur., Ltd. v Schwartz, 69 AD3d 924, 925 [2nd Dept. 2010]; Verela v Citrus Lake Dev., Inc., 53 AD3d 574, 575 [2nd Dept. 2008]; Levien v Allen, 52 AD3d 578 [2nd Dept. 2008]).

In the present case, the plaintiff, upon the foregoing papers, established his prima facie entitlement to judgment as a matter of law by submitting the promissory note and loan agreement signed by the defendant, coupled with his own affidavit asserting that the defendant failed to repay the loan in accordance with the terms of the note (see,Verela v Citrus Lake Dev., Inc., 53 AD3d at 575, supra; North Fork Bank v ABC Merchant Servs., Inc., 49 AD3d 701 [2nd Dept. 2008]; Suffolk County Natl. Bank v Columbia Telecom. Group, Inc., 38 AD3d 644, 645 [2nd Dept. 2007]; Quest Commercial, LLC v Rovner, 35 AD3d 576 [2nd Dept. 2006]).

In opposition to the cross motion for summary judgment, defendants failed to raise a triable issue of fact with respect to a bona fide defense (see, Gullery v Imburgio, 74 AD3d 1022 [2nd Dept. 2010]; Quest Commercial, LLC v Rovner, 35 AD3d 576 [2nd Dept. 2006]; Hestnar v Schetter, 284 AD2d 499, 500 [2nd Dept. 2001]). Accordingly, the branch of the cross motion by plaintiff which is for summary judgment in his favor is granted.

The branch of the cross motion by plaintiff which is for sanctions against defendants and their attorney is denied. Plaintiff merely asserts this argument in his preface to the motion and does not specifically indicate what sanctions he is seeking and for what particular infraction. A court order is only enforceable according to its terms, and a party will not be found to be in defiance of an order absent conduct that violates a clear directive (see, Watson v Esposito, 231 AD2d 512 [2nd Dept.], appeal dismissed, 89 NY2d 915 [1996] [discovery]). The party must be aware of the action required to be undertaken by a preliminary conference order before failure to comply with its terms can be the basis for sanction (see, Halali v Evanston Ins. Co., 288 AD2d 260, 261 [2nd Dept. 2001] [dismissal]).

Nevertheless, the Court, in its discretion, and pursuant to its power to grant such relief as may be just and proper, awards the plaintiff an additional attorneys fee of $4,500, to the judgment to be settled to the Judgment Clerk. [*3]

The Motion by Defendant for Discovery

At a compliance conference before Justice Martin E. Ritholtz, held on or about September 12, 2012, following the submission of the present motions, defense counsel withdrew his discovery-related motions. At any rate, in light of the Court's determination granting summary judgment to plaintiff, the defendants' motion for discovery is denied as academic.

In sum, the defense motion is denied. The cross motion is granted to the extent of granting plaintiff summary judgment in his favor, the branch of the cross motion for sanctions is denied, and the plaintiff is awarded an additional $4,500 in attorneys fees pursuant to the Court's inherent power to afford complete relief in appropriate case.

The foregoing constitutes the decision, opinion, and order of the Court.

_______________________________

J.S.C.

Dated: October 26, 2012