Copelco Capital Inc. v Church

[*1] Copelco Capital Inc. v Church 2005 NY Slip Op 50186(U) Decided on February 17, 2005 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 17, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and GOLIA, JJ.
2004-408 RI C

Copelco Capital Inc., Appellant,

against

Lighthouse Tabernacle Church, Respondent. LIGHTHOUSE TABERNACLE CHURCH, Third-Party Plaintiff, TYPEWRITER SALES and SERVICES, Third-Party Defendant.

Appeal by plaintiff from so much of an order of the Civil Court, Richmond County (K. King, J.), entered February 10, 2004, as denied its motion for summary judgment.

Order unanimously modified by granting plaintiff's motion for summary judgment upon its first, second, fourth and fifth causes of action, matter remanded to the court below for an assessment of damages thereon and, in searching the record, plaintiff's third cause of action dismissed; as so modified, affirmed without costs. [*2]

"The plaintiff met its initial burden of establishing its entitlement to judgment as a matter of law by submitting the equipment lease and proof of nonpayment" (Advanta Leasing Servs. v Laurel Way Spur Petroleum Corp., 11 AD3d 571, 571 [2004]; Preferred Capital v PBK, Inc., 309 AD2d 1168 [2003]; see also Canon Fin. Servs. v Medico Stationery Serv., 300 AD2d 66 [2002]). In opposition, defendant submitted an affirmation by its counsel which was of no probative value (see Feratovic v Lun Wah, Inc., 284 AD2d 368 [2001]). In any event, the affirmation failed to demonstrate the existence of a triable issue of fact (see Preferred Capital, 309 AD2d at 1168-1169; Canon Fin. Servs., 300 AD2d at 66-67). Accordingly, plaintiff's motion for summary judgment upon its first, second, fourth and fifth causes of actions should have been granted and the matter is remanded to the Civil Court for an assessment of damages. In searching the record, we conclude that plaintiff's third cause of action should be dismissed inasmuch as it seeks to recover liquidated damages as a cost of [*3]
collection. However, because plaintiff's fifth cause of action permits plaintiff to recover its actual collection costs, plaintiff may not also recover the liquidated damages set forth in its third cause of action.
Decision Date: February 17, 2005