Market Serv., Inc. v S.P. Discount Inc.

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Market Serv., Inc. v S.P. Discount Inc. 2008 NY Slip Op 31839(U) June 23, 2008 Supreme Court, Nassau County Docket Number: 7885-07/ Judge: Leonard B. Austin Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1 ] 5ClU INDEX NO. 07885- SUPREME COURT - STATE OF NEW YORK IAS TERM PART 12 NASSAU COUNTY PRESENT: HONORABLE Justice LEONARD B. AUSTIN February 19, 2008 Submission Date: February 11, 2008 Motion RID: Motion Sequence No. MARKET SERVICE, INC. d/b/a ACCOUNTS RECEIVABLE MANAGEMENT SOLUTIONS, 002/MOT COUNSEL FOR PLAINTIFF Anthony K. Dilmetin, Esq. 1979 Marcus Ave. , Suite 210 Plaintiffs, Lake Success, NY 11042 - against - COUNSEL FOR DEFENDANT P. DISCOUNT INC. , RAND WHOLESALE INC., VAL VOLKOV AS VITALIJUS VOLKOVAS, a/kla VLADIMIR A. POLSKI and YURIY SHV ARTS, NO APPEARANCE Defendants. ORDER The following papers were read on Plaintiffs motion for a default judgment: Notice of motion dated February 11 , 2008 Affrmation of Anthony K. Dilimetin , Esq. dated February 11 , 2008; Affdavit of Larry Sarf dated February 11 , 2008 BACKGROUND Plaintiff , Market Service , Inc. (" Market Service ), alleges that it is entitled to damages as a result of Defendants ' failure to make a payment for , " [* 2 ] MARKET SERVICE INC. et ana. v. S. P. DISCOUNT , INC. et al Index No. 7885the outstanding invoices , asserting that Defendants , Val Volkovas Volkovas ), president of Defendant , S. P. Discount (" Discount" ) and Vladimir Polski Polski" ), are personally liable for the debts. Market Service alleges that it is the assignee and authorized agent for SIC USA Inc. (" BIC USA" On May 25 2005 , Discount entered into an agreement Terms of Credit" , with BIC USA , under which BIC USA , as seller , agreed to make a credit advance and Discount promised to make payment for the goods delivered and recieved after. examining the invoices issued by the Seller. Volkovas executed the agreement as president of Discount. He also personally guaranteed all debts owed to BIC USA by Discount. Market Service alleges that goods and merchandise were delivered and received without objection by Defendants upon their request. The agreed upon value of the goods delivered is $385 993. Defendants have not paid any part of said sum despite Plaintiffs numerous demands for payment. As a result , Market Service seeks to recover $385 993 plus interest from April 1 , 2007. Defendants were served with a copy of summons and complaint. Polski and Volkovas were each served on May 9 , 2007 pursuant to CPLR 308(2). Additional service of the summons and complaint were made by mail to each Defendant' s last known residence pursuant to CPLR 3215 (g). Service was complete on May 26 , 2007. To date Defendants have not appeared , answered or moved in this case. Accordingly, Market Service now moves for leave to enter a default judgment against Volkovas and Polski. , " , " [* 3 ] MARKET SERVICE INC. Index No. 7885- et ano. v. S. P. DISCOUNT , INC. et al DISCUSSION CPLR 3215 permits a party to obtain a default judgment against a defendant who defaults in appearing and answering. An application for leave to enter default judgment must be supported by proof of service of summons and complaint , and affidavit of merit sworn by a person with actual legal knowledge of the facts surrounding the claim and proof of default. Siegel Further facie New York Practice 4th 295; and CPLR 3215(f). prima , the party seeking a default judgment must establish the existence of a Joosten v. Gale , 129 AD. 2d 531 (1st cause of action against the defaulting party. Dept. 1987). When a defendant has failed to appear , the plaintiff does not have the benefit of discovery: Thus the affidavit (of merit) or verified complaint need only allege enough facts to enable a court to determine that a viable cause of action exists. Woodson v. Mendon Leasina Corp , 100 N. Y.2d 62 , 70 (2003). Moreover defaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inference that flow from them. Id. See also Rokina Optical Co. v. Camera King , 63 N. Y.2d 728 , 730 (1984). Market Service has established this Court' s jurisdiction over the Defendants. The affdavits of service ' establish personal service upon Polski and Volkovas pursuant to CPLR 308(2). Market Service s motion for default judgment is supported by an affidavit of merit made by Larry Sarf , president of Market Service , who has first hand knowledge of the facts constituting the cause of action as well as the verified complaint. See Zelnick v. Biderman Industries U. A. Inc , 242 AD. 2d 227 (1st Dept. 1987); and Adkins v. [* 4 ] MARKET SERVICE INC. Index No. 7885- et ano. v. S. P. DISCOUNT , INC. et al Lipner. Gordon & Co. , 10 Misc. 3d 1062(A) (Sup. Ct. Nassau. Co. 2005). Market Service has established its claim for breach of contract against prima facie Volkovas , but not against Polski. The elements of a cause of action for breach of contract are the existence of a contract between the plaintiff and the defendant consideration , performance by the plaintiff , breach by the defendant and damages resulting from the breach. Furia v. Furia , 116 AD. 2d 694 (2nd Dept. 1986). Market Service failed to demonstrate Polski' s relation to the agreement and to BIC USA , Inc. or Discount. Therefore , Market Service has failed to establish that Polski is a party to the agreement and is liable for breach thereof. Plaintiff alleges that Volkovas personally guaranteed the payment due. guaranty must be in writing executed by the person to be ch rged. Schulman Westchester Mechanical Contractors. Inc. , 56 AD. 2d 625 (2nd Dept. 1977); and General Obligations Law ~ 5- 701 (a)(2). The intent to guarantee payment of the PNC Capital Recovery v. Mechanical Parking obligation must be clear and explicit. Systems. Inc. , 283 AD. 2d 268 (1st Dept. 2001), app. dism. 98 N. Y.2d 763 (2002). Clear and explicit intent to guarantee the obligation is established by having the guarantor sign in that capacity and by the language of the guaranty. N.Y. 2d 63 (1961); and AD. 2d Slazman Sign Co. v. Beck , 1 0 Harrison Court Assocs. v. 220 Westchester Ave. Assocs , 203 244 (2nd Dept. 1994). A guaranty is a contract that is to be construed so as to give effect to the intent of the parties as reflected by the language of the agreement. Fehr Bros. Inc. v. Scheiman 212 AD. 2d 13 (1st Dept. 1986). The liability of a guarantor is narrowly construed and cannot be extended beyond the clear and explicit language of the guaranty. Kev Bank of [* 5 ] MARKET SERVICE INC. et ana. v. S. P. DISCOUNT , INC. et al Index No. 7885- Long Island v. Burns , 162 AD. 2d 501 (2nd Dept. 1990). Volkovas signed the guaranty but Polski did not. The language of the guaranty indicates that the payment of debt was guaranteed. Although the language of the guaranty suggests that there was to be joint and several liability for Discount's obligations , Volkovas was the only signatory. It is clear that Volkovas is in default for failing to appear in this matter. Having failed to properly deny his liability herein , the motion must be granted. Accordingly, it is ORDERED , that Plaintiffs motion for leave to enter a default judgment against Polski is denied; and it is further ORDERED , that Plaintiffs motion for leave to enter a default judgment against Volkovas is granted; and it is further ORDERED , that the County Clerk of Nassau County is directed to enter judgment in favor of the Plaintiff and against the Defendant , Val Volkovas , a/kJa Vitalijus Volkovas in the amount of $385 993 together with interest from April 1 , 2007 , costs and disbursements as taxed by the Clerk. This constitutes the decision and Order of the Court. Dated: Mineola , NY June 23 , 2008 JUN 252008 NASSAU COUNTY S OFFICE COUNTY CLERK' ...s.",

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