Goren v Tomasino

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Goren v Tomasino 2011 NY Slip Op 33371(U) December 7, 2011 Supreme Court, Nassau County Docket Number: 12163-11 Judge: Timothy S. Driscoll 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] SUPREME COURT- STATE OF NEW YORK SHORT FORM ORDER Present: HON. TIMOTHY S. DRISCOLL Justice Supreme Court ------------------------------------------------------------------- J( TRIAL/IAS PART: 20 NASSAU COUNTY ABRAHAM GOREN, Plaintiff, IndeJ( No: 12163Motion Seq. No: 1 -against- Submission Date: 10/11/11 VINCENT TOMASINO, SR., Defendant. -------------------------------------------------------------------- J( The following papers have been rea on this motion: Notice of Motion, Affidavit in Support and EJ(hibit................... Affidavit in Opposition and Exhibits............................................. Reply Affirmation in Further Support and Reply Affidavit...... Abraham This matter is before the Cour for decision on the motion fied by Plaintiff , 2011. For the reasons set Goren (" Plaintiff' ) on August 19, 2011 and submitted on October 11 forth below , the Cour grants Plaintiff s motion and awards Plaintiff judgment against Defendant in the sum of $150 000. , plus interest at 6% from August 16 , 2007 , together with the costs and disbursements of this action. BACKGROUND A. Relief Sought Plaintiff moves for an Order , pursuant to CPLR 3213 , granting him sumar judgment in lieu of Complaint and entering a judgment in favor of Plaintiff and against Defendant in the 000. , plus interest at six (6%) percent from August 16 2007 , together with amount 01'$150, costs and disbursements. Defendant Vincent Tomasino , Sf. (" Defendant") opposes Plaintiffs motion. [* 2] B. in The Paries ' History Note Plaintiff affirms that on August 16 , 2007 , Defendant executed a promissory note (" ) in the principal sum of$l50 000. 00. The Note Plaintiffs favor (Ex. A to Goren Aff. in 8upp. provided for instalment payments of $25 000. 00 beginning on October 1 , 2007 , with the last per installment payment due on Febru 1 2009. The Note also provides for a six (6%) percent interest rate on the principal balance. The Note provides fuer that it may not be anum changed or terminated orally. Plaintiff avers that Defendant failed to make any payments under the Note. The tota principal amount under the Note is now due , including accrued interest. In opposition , Defendant affirms that he " do( es) not recollect" signing the Note (Tomasino Aff. in Opp. at 2), " nor do I recognze the signatue thereon as mine (id.). Defendant affrms that the " 8" in " Sf. " is different from his signature. Defendant affirms , fuher arguendo , that assuming that his signature on the Note is genuine , there was no consideration for the execution ofthe Note. Defendant avers that in 2005, ), which owned he purchased from Plaintiff all of the stock in Caine Realty Inc. (" Caine Realty" real propert in the Bronx, New York. As par of the purchase price , Caine Realty executed a mortgage in the sum of $250 000. 00. Defendant's "recollection " (Tomasino Aff. in Opp. at is that , at the time of the purchase , he personally guaranteed the mortgage to Plaintiff. Defendant at Ex. A). The mortgage was sold to Tampa Apts. Realty (id. provides a copy of that mortgage Corp. , as reflected in the assignment provided (id. at Ex. B). Thus , Defendant submits if! guaranteed the mortgage which plaintiff assigned away, he assigned away any right to collect from me on the guarantee (id. at 6). In reply, Plaintiff affrms that prior to 2005 , he owned certain propert in the Bronx to him all the shares through a corporation. In 2005, he sold the propert to Defendant by sellng in the corporate owner. Par of the consideration for the sale was providing Plaintiff with a mortgage against the Bronx propert in the amount 01'$250 000. In 2007 , Defendant sought to mortgage to sell the Bronx propert, and in consideration for the assignment of Plaintiffs effectuate that sale , Plaintiff was paid the sum 01'$50, 000 and given the Note in the amount of $150 000. [* 3] Plaintiff affirms that the assignment of the mortgage was the consideration for the Note. Plaintiff, in fiing this motion , is not seeking to collect on either the mortgage or guaranty and thus , Defendant's affirmations are not relevant. Rather , Plaintiff is seeking to collect against the Note. Plaintiff notes that Defendant does not deny signing the Note , or deny failng to make payments on the Note. C. The Paries ' Positions Plaintiff submits that he has demonstrated his right to judgment against Defendant by producing the Note and establishing Defendant' s failure to make payment pursuant to its terms. Defendant opposes Plaintiff s motion , submitting that his assertions that he " does not recall" signing the Note and that the parties executed other documents raise issues of fact making sumar judgment inappropriate. In reply, Plaintiff contends that Defendant's assertions do not raise a valid defense to this action. Plaintiff notes that Defendant does not deny signing the Note , but rather says that he does not recall signing it; notably; Defendant is able to recount the circumstances .under which the Note was signed. Plaintiff submits , fuher, that Defendant' s claims regarding lack of consideration " make no sense " (Muray Reply Aff. at ~ 7), as any issues regarding the guaranty and mortgage are not relevant to Plaintiffs action on the Note , and do not preclude judgment in favor of Plaintiff on the Note. RULING OF THE COURT A. Motion for Sumar Judgment in Lieu of Complaint CPLR ~ 3213 provides as follows: When an action is based upon an instrent for the payment of money only or upon any judgment , the plaintiff may serve with the summons a notice of motion for sumar judgment and the supporting papers in lieu of a complaint. The sumons served with such motion papers shall require the defendant to submit answering papers on the motion within the time provided in the notice of motion. The minimum time such motion shall be noticed to be heard shall be as provided by subdivision (a) of rule 320 for making an appearance , depending upon the method of service. If the plaintiff sets the hearing date of the motion later than the minimum time therefor , he may require the defendant to serve a copy of his answering papers upon him within such extended period of time , not exceeding ten days , prior to such hearing date. No default judgment may be entered pursuant to subdivision (a) of section 3215 prior to the hearing date of the motion. Ifthe motion is denied , the moving and answering papers shall be deemed the complaint and answer , respectively, unless the cour orders otherwse. [* 4] The purose of CPLR ~ 3213 is to provide a speedy and effective means of securing a judgment JD. Structures, Inc. v. Waldbaum 282 AD.2d on claims that are presumptively meritorious. 434 (2d Dept. 200l). Relief pursuant to CPLR ~ 3213 is available where a right to payment can 343 v. Indah Kiat Finance 291 AD.2d 342 Boland be ascertained from the face of a document. (l51 Dept. 2002), quoting B. Matas v. AI.C. , 274 A. D.2d 327 , Alpargatas 328 (151 Dept. 2000). Promissory Note A promissory note is an instrment for the payment of money only for the purose of Davis CPLR ~ 3213. v. v. 214 AD. 2d Baccaray, East New York Savings B(;mk Lanteri 307 AD. 2d 947 (2d Dept. 2003); 60l (2d Dept. 1995). 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. v. Larry Lawrence IRA Lugli v. Exeter Holding Ltd. 84 AD.3d l175 , 1176 (2d Dept. 20l1), quoting Johnston 78 AD. 3d 1133 , 1135 (2d Dept. 2010). Once plaintiff has met its burden, the defendant must then establish by admissible evidence the existence of a triable issue concerning Cutter Bayview Cleaners, Inc. v. Spotless Shirts, Inc. 57 AD.3d 708 , 710 a bona fide defense. Northport Car Wash, (2d Dept. 2008); Inc. v. Northport Car Care , LLC 52 AD. 3d 794 , 795 (2d Dept. 2008). C. Application of these Principles to the Instat Action The Cour concludes that Plaintiff has demonstrated his right to judgment against Defendant , pursuant to the Note , by establishing the existence of the Note , which contans an unequivocal and unconditional obligation to repay, and Defendant's failure to make payment pursuant to the terms of that instruent. Moreover, Defendant' s conclusory denials do not generate a triable issue concerning a bona fide defense , and his other assertions are without merit. Accordingly, it is hereby: ORDERED that Plaintiff Abraham Goren have judgment against Defendant Vincent Tomasino , Sr. in the sum of$150 000. , plus interest at 6% from August 16 , 2007 , together with the costs and disbursements of this action. [* 5] All matters not decided herein are hereby denied. This constitutes the decision and order of the Cour. Submit judgment on ten (lO) days notice. ENTER DATED: Mineola, NY December 7 , 20 II -f. ENTERED DEC 13 2011 NASSAU COUNTY C8TY CLIRK" OFFICE

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