Wells Fargo Fin. Leasing, Inc. v First Capital Real Estate Advisors, LP

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Wells Fargo Fin. Leasing, Inc. v First Capital Real Estate Advisors, LP 2017 NY Slip Op 32522(U) November 9, 2017 Supreme Court, New York County Docket Number: 655637/2016 Judge: David B. Cohen Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 11/30/2017 09:14 AM 1] NYSCEF DOC. NO. 48 INDEX NO. 655637/2016 RECEIVED NYSCEF: 11/30/2017 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY ! PRESENT: 58 PART HON. DAVID BENJAMIN COHEN Justice ------~---------------------------------------------------------------------~L----X ., WELLS FARGO FINANCIAL LEASING, INC., INDEX NO. 655637 /2016 Plaintiff, MOTION DATE MOTION SEQ. NO. -vFIRST CAPITAL REAL ESTATE ADVISORS, LP A/K/A UNITED REALTY ADVISORS, L.P., JACOB FRYDMAN 6/30/2017 002 DECISION AND ORDER Defendant -----'-f----------------------------------------------------------------------'------X Thejfollowing e-filed documents, listed by NYSCEF document number 18, 19, 20, 21, 22, 23, 24, 25, 26,?7, 28,29, 30, 31,32, 33, 34, 35, 36, 37, 38, 39,40,42,43,44,46,47 were read on this application to/for .r SUMMARY JUDGMENT(AFTER JOINDER Upon the foregoing documents, it is Decided that the motion seeking a default judgment against First Capital is granted and the motipn seeking judgment against Jacob Frydman is also granted. The facts are not in dispute. Defendant First Capital a/k/a United Realty and TAM;CO Capital Corporation entered into a comh1ercial equipment lease. Pursuant to the lease, First Capital leased certain equipment and was supposed to make 60 payments of $1,947.00 for a total of $116,820.00. The lease contained an acceleration provision that permitted an acceleration of the amount due if payments were not ,,: mad~. Defendant Frydman signed the lease on behalt of the corporation and signed a separate persbnal guaranty. TAM CO assigned its rights under the lease to plaintiff. First Capital made a number of payments but in February 2016, plaintiff brought an action against both United Realty 655637/2016 WELLS FARGO FINANCIAL vs. UNITED REAL TY ADVISORS, L.P. Motion No. 002 ' 1 of 5 Page 1 of 5 [*FILED: NEW YORK COUNTY CLERK 11/30/2017 09:14 AM 2] NYSCEF DOC. NO. 48 INDEX NO. 655637/2016 RECEIVED NYSCEF: 11/30/2017 I after;First Capital failed to make payments and sought the accelerated amounts due. In March 2016, plaintiff and defendant United Realty executed a settlement where United made a large payment and was brought current. Plaintiff agreed to not accelerate the total amount due. 1 Defendant Frydman was not a party to the settlement agreement. Plaintiff brought this second action following additional missed payments. Plaintiff 1 alleg es that 31 out of the 60 payments were made but 'defendant has failed to make payments I since the September 2016 payment was due. Accordingly, plaintiff seeks the balance of the total amo~mt due of $52,698, plus pursuant to the contract (a) interest in the amount of one and one1 half percent since September 29, 2016, (b) plus a late fee of$194.70, (c) plus the present ',I I discqunted value of the equipment in the amount of $9,668.73, (d) plus taxes in the amount of I $5,5 . 5.10 and (e) reasonable attorneys' fees. Defendant First Capital/United has not appeared. i Defepdant Frydman appeared and denied the allegations. Frydman also asserted one affirmative I I defense that he was not a party to the March 2016 settlement agreement and should be deemed discharged from any obligation to plaintiff as a result of it. Frydman also asserted cross-claims I against the non-appearing co-defendant First Capital. Plaintiff filed the instant motion seeking a default judgment against First Capital and summary judgment against Frydman. In support of the motion, plaintiff submitted the affidavit Rocky Hardy, a loan adjustor for plaintiff, the lease, the guaranty and the assignment of the I lease. In opposition, defendant submitted the affidavit of Frydman. In the affidavit, Frydman argu~s that he did not consent to the settlement agreement and because the settlement de- accelerated the debt, it has impacted him and he should be discharged from his obligations under the guaranty. Similarly, the settlement agreement coi:.tained a release from United to plaintiff which should also discharge Frydman's obligations under the guaranty. 2 of 5 655637/2016 WELLS FARGO FINANCIAL vs. UNITED REAL TY ADVISORS, LP. Page 2 of 5 [*FILED: NEW YORK COUNTY CLERK 11/30/2017 09:14 AM 3] NYSCEF DOC. NO. 48 INDEX NO. 655637/2016 RECEIVED NYSCEF: 11/30/2017 ·' Summary judgment is a drastic remedy that should not be granted where there exists a triable issue of fact (Integrated Logistics Consultants v. Fidata Corp., 131 AD2d 338 [1st Dept ' ' : i) 1987]; Ratner v. Elovitz, 198 AD2d 184 [1st Dept 1993 ]). On a summary judgment motion, the ,. court must view all evidence in a light most favorable to the non-moving party (Rodriguez v. Parkchester South Condominium Inc., 178 AD2d 23~ [1st Dept 1991]). The moving party must shoir that as a matter of law it is entitled to judgment [Alvarez v. Prospect Hosp., 68 NY2d 320 ., . 324 [1986]). The proponent of a summary judgment motion must make aprimafacie showing of '• entitlement to judgment as a matter of law, tendering ~ufficient evidence to eliminate any material I I ' issues of fact from the case (Wine grad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). After ' 'I . . the moving party has demonstrated its prima facie entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial (Zuckerman v. City ofNew York, 49 NY2d 557 [1980]). Here, there is no dispute of material facts. Defendant Frydman sole argument is that the I settlement agreement between United and plaintiff inipacted Frydman's obligations. Specifcally, ~'where that an obligee materially alters the terms of the contract and increases the risks imposed on tl)e surety [or guarantor] by such acts as modifying the duties of the principal [or] extending the time for the principal's performance" - as here - t?e surety [or guarantor - here Mr. Frydman] " ... is relieved of its obligation." 63 N.Y. Jur. 2d Guaranty and Suretyship § 190 ' (embhasis added)." Further, "the rule that an extensibn of the time of payment of the debt without the consent of a surety bound for its payment discharges the surety is applied without I regard, at least in the case of an uncompensated surety, to whether the surety suffers substantial injury as a result of the extension, or it works to his or her detriment." Id., § 205." ,j 655637/2016 WELLS FARGO FINANCIAL vs. UNITED REAL TY ADVISORS, LP. Motion No. 002 ., 3 of 5 Page 3 of 5 [*FILED: NEW YORK COUNTY CLERK 11/30/2017 09:14 AM 4] NYSCEF DOC. NO. 48 INDEX NO. 655637/2016 RECEIVED NYSCEF: 11/30/2017 Defendant Frydman's argument is without merit. First of all, the settlement agreement did riot materially alter the terms of the contract, increase the risks, modify the duties or extend the time of payment under the contract. The settleme1:1t agreement put the parties in the exact same position that they were in prior to the initial defciult. Arguably, the settlement agreement actually improved Frydman's position in plaintiff agreeing not to seek the immediate payment of all mionies due and giving another chance. Further, e~en if the terms were modified in a negative mander, in the guaranty Frydman had already agreed and that he consented to modifications to / '! the lease. Thus, as there remains no question of fact, summary judgment is granted to plaintiff. 1 Defendant Frydman has not cross-moved for a default judgment against his non-appearing co: I deferidant Accordingly, it is therefore ORDERED, that a default judgment is awarded to plaintiff against the non-appearing ' ' . defe1{dant First Capital Real Estate Advisors, LP A/KIA United Realty Advisors, L.P. in the . Ii amount of $52,698, plus pursuant to the contract (a) iriterest in the amount of one and one-half percent since September 29, 2016, (b) plus a late fee o'f$194.70, (c) plus the present discounted value of the equipment in the amount of $9,668.73, (d) plus taxes in the amount of $5,5.5.10, plus basts and disbursements; and it is further ORDERED, that plaintiff is awarded summary1judgment against defendant Frydman in the amount of $52,698, plus pursuant to the contract (a) interest in the amount of one and one. " half percent since September 29, 2016, (b) plus a late fee of $194.70, (c) plus the present discoiunted value of the equipment in the amount of $~,668.73, (d) plus taxes in the amount of '; $5,5.5.10, plus costs and disbursements; and it is furth:er ORDERED, that the cause of action for an award ofreasonable attorney's fees is grant~d as against defendants and the claim for fees is'isevered. 655637/2016 WELLS FARGO FINANCIAL vs. UNITED REAL TY ADVISORS, L.P. Motion No. 002 ' 4 of 5 An inquest/trial is granted to Page 4 of 5 [*FILED: NEW YORK COUNTY CLERK 11/30/2017 09:14 AM 5] NYSCEF DOC. NO. 48 INDEX NO. 655637/2016 RECEIVED NYSCEF: 11/30/2017 deteimine the amount of fees to be awarded. Plaintiff shall cause the matter to be placed upon the c'alendar for such trial. Plaintiff shall, within 20 days from the date of this order, serve a copy of this order upon (counsel for) all parties hereto by r~gular mail and upon the Clerk of the General Clerk's Office (60 Centre Street, Room 119)'and shall serve and file with said Clerk a note 'of issue and statement of readiness and shall pay:the fee therefor, and said Clerk shall cause the i'!latter to be placed upon the calendar for such trial. This constitutes the decision and order of the Court. 11/9/2017 DAVID BENJAMIN COHEN, J.S.C. DATE CHECK ONE: HON. DAVID B. COHEN CASE DISPOSED GRANTED D N~P.Q,SII!QN DENIED. . G~!HED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: DO NOT POST FIDUCIARY APPOINTMENT 655G37/2016 WELLS FARGO FINANCIAL vs. UNITED REALTY ADVISORS, L.P. Motion No. 002 5 of 5 D D J,s,c, OTHER REFERENCE Page 5 of 5

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