Waste Mgt. of New York, LLC v Crown Waste Corp.

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Waste Mgt. of New York, LLC v Crown Waste Corp. 2012 NY Slip Op 31286(U) May 9, 2012 Sup Ct, Nassau County Docket Number: 600862/11 Judge: Jeffrey S. Brown 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] SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU PRE S E NT: HON. JEFFREY S. BROWN JUSTICE TRIAL/IAS PART 17 WASTE MANAGEMENT OF NEW YORK, LLC, INDE)( # 600862/11 Plaintiff, Motion Seq. 1 Motion Date 2. 16. Submit Date 4- 30- -againstCROWN WASTE CORP., CHRISTOPHER ANTONACCI, ROBERT CARPINELLI, Defendants. The following papers were read on this motion: Papers Numbered Notice of Motion , Affdavits (Affirmations), Exhibits Annexed......................... Answering Affidavit ............................................................................................. Reply Affidavit...................................................................................................... Plaintiff moves by notice of motion for the following relief: an order pursuant to CPLR 3212 , granting sumar judgment as against defendants Crown Waste Corp. , (hereinafter Crown) and Christopher Antonacci in favor ofthe plaintiff; and an order pursuant to CPLR 3215 granting a default judgment as against defendant Robert Carinelli. On or about September 24 2009 , defendants Antonacci and Carpinell executed a credit application with plaintiff. Pursuant to the credit application , defendants represented that they were equal parners of defendant Crown. The credit application was approved and defendant Antonacci signed an agreement called" Industrial Waste and Disposal Services Agreement." This document was executed on October 5 , 2009. Simultaneously with the execution of this agreement , defendants Antonoacci and Carpinelli executed a personal guarantee. Plaintiffs state that between October 10 , 2009 and January 31 , 2010 , defendants requested waste disposal services from plaintiff. Attached to the motion papers are copies of invoices [* 2] purortedly sent to the defendants. Plaintiffs allege that defendants breached the agreement and the amount of$129 023. 84 is due and owing, despite demand for same. Plaintiff additionally alleges that it is entitled to 18% per anum interest as per paragraph 8 of the agreement and reasonable attorney s fees in the amount of $25 804. 77. In opposition, defendant Crown and Antonacci I assert that there are questions of fact which preclude summar judgment which relate to inaccurate charges for tonnage invoiced by plaintiff to defendant. Defendants additionally argue that the rate of 18% per anum interest is usurious with respect to the individual defendant Antonacci. Therefore , the contract is void and unenforceable. Defendants contend that plaintiffs accounting is fatally flawed and canot support sumar judgment as a matter of law. Defendant argues that plaintiffs accounting does not accurately reflect payments made by corporate defendant. The court notes , however , save for a copy of one check in the amount of $16 762. , defendants have not provided documentation with respect to any other payments made to plaintiff for the court' s review. Finally, defendant argues that the case has yet to be scheduled for a preliminar conference , discovery has not been directed by the cour , nor have the paries exchanged disclosure materials. Defendant indicates that compliance with discovery by plaintiff wil produce additional evidence that wil controvert plaintiffs claim as contained in its complaint. Submitted in opposition to the instant application is an affidavit of Joanie Antonacci spouse of defendant Antonacci. She affirms that she handles the paperwork in the office and frequently questioned the invoices by phone calls to plaintiffs accountants receivable deparment. She explained that she did not recognize the items that had been biled and requested " back up documents. " Notwithstanding her requests , the back up materials were never sent to plaintiff. She also states that " the accounting was confusing because all of the invoices that were sent to us did not appear on the statements. I repeatedly sent copies of the statements with notes that payment had been made and specified the check number of the check sent for payment on the invoice. In reply, plaintiff asserts inter alia that defendant has failed to raise any legal arguments or facts which would set for any triable issues of fact. Plaintiff argues that defendants conclusory statement and belief that they are " confused" by the accounting is not a triable issue offact. Most importantly, defendant has offered no evidence to show that these invoices are not accurate; nor has defendant identified a single transaction which they claim to be incorrect. At no time does defendant offer any allegation , evidence or proof of any payment allegedly made and not credited. The cour notes that the portion of the motion with respect to defendant Carinell' default has been withdrawn and severed due to a pending banptcy proceeding. [* 3] Based on the foregoing, the decision of the court is as follows: It is well settled that a the proponent of a motion for summar judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact Twentieth Century Fox (Silman 3 NY2d 395 , 144 N. 2d 387 , 165 N. Y.S.2d 498 (1957); Alvarez Prospect Hospital 68 NY2d 320 501 N. E.2d 572 508 N. Y.S. 2d 923 (1986); Zuckerman City of New York 49 NY2d 557 404 N. 2d 718 , 427 N. 2d 595 (1980); Bhatti Roche 140 AD2d 660 528 N. Y.S.2d 1020 (2d Dept 1998)). To obtain sumary judgment , the moving pary must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form , sufficient to warant the Court , as a matter of law, to direct judgment in the movant' s favor ( Friends of Animals, Inc. Associated Fur Mfrs. , Inc. 46 NY2d 1065 390 N. E.2d 298 , 416 N. Y.S.2d 790 (1979)). Such evidence may include deposition transcripts , as well as other proof anexed to an attorney affirmation (CPLR 3212 (b); Olan Farrell Lines 64 NY2d 1092 479 N. E.2d 229 , 489 2d 884 (1985)). If a sufficient prima facie showing is demonstrated , the burden then shifts to the non-moving par to come forward with competent evidence to demonstrate the existence of a material issue of fact , the existence of which necessarily precludes the granting of summary judgment and necessitates a trial (Zuckerman City of New York 49 NY2d 557 , 404 N. E.2d 718 427 N. Y.S.2d 595 (1980), supra). It is incumbent upon the non-moving pary to lay bare all of the facts which bear on the issues raised in the motion (Mgrditchian Donato 141 AD2d 513 , 529 N. Y. S.2d 134 (2d Dept 1998)). Conclusory allegations are insufficient to defeat the application and the opposing par must provide more than a mere reiteration of those facts contained in the pleadings (Toth Carver Street Associates 191 AD2d 631 595 N. Y.S.2d 236 (2d Dept 1993)). When considering a motion for summar judgment , the fuction of the court is not to resolve issues but rather to determine if any such material issues of fact exist (Silman Twentieth Century Fox 3 NY2d 395 , 144 N. E.2d 387 , 165 N. Y.S. 2d 498 (1957), supra). Recine Margolis, 24 Misc. 3d 1244A; 901 N. Y.S.2d 902 A plaintiff establishes a breach of contract action by demonstrating the existence of a contract between the paries , performance by the plaintiff, breach by the defendant and damages resulting from the breach. (JP Morgan Chase vJH Elec. of New York, Inc. 69 AD3d 802 803 Dept 2010)). Contract language which is clear and unambiguous must be enforced according to its terms. (W W Assoc. Giancontieri 77 NY2d 157 , 162 (1990)). It is well settled that when sophisticated and counseled business persons set down their agreement in a clear , complete document , their writing should be enforced according to its terms. (Vermont Teddy Bear Co. v 538 Madison Realty Co. 1 NY3d 470 , 475 (2004) (quotation marks and citation omitted)). The cour' s role is to enforce the paries ' agreement , not to create a new contract under the guise of construction. (NML Capital Republic of Argentina 17 NY3d 250 259 (2011)). [* 4] An action on an account stated is established by proving that the defendants received and retained bils for services rendered or goods provided to defendants without objection. It is an agreement between the paries to an account based upon prior transactions between them with respect to the correctness of the account items and balance due. (Citibank, NA. Jones , 272 AD2d 815 (2 Dept 2000)). It canot , however, be used to create liability where none otherwise exists or utilzed simply as another means to attempt to collect under a disputed contract. (Ross Sherman 57 AD3d 758 , 759 (2 Dept 2008)). An account becomes stated in one of two ways: first , where the debtor expressly admits to its being correct , which makes the account binding on both paries; and second, where , instead of an express admission of the correctness of the account , the par receiving it retains the statement and makes no objection to it within a reasonable time. Silence wil be construed as assent and the par wil be bound by it as if it were a stated account. (Rodkinson Haecker 248 NY 480 485 (1928)). Applying the above principles to the case at bar , the court finds that plaintiff has made a prima facie showing of entitlement to summar judgment. It is uncontroverted that a contract exists between the paries and that defendants received the invoices. However , defendants Crown and Antonacci have raised a triable issue of fact as to whether such charges were contested as evidenced by the affidavit of Joanie Antonacci. The affant indicated that on numerous occasions she spoke with employees in plaintiffs accounts receivable deparment to question the invoices received. Thus , an issue remains whether defendants , in fact , interposed objections to charges made to them. Defendant Carinell has failed to answer or otherwise appear in this action despite being properly served. Accordingly, it is ORDERED , that plaintiffs application for an order pursuant to CPLR 3212 , granting DENIED without prejudice. summar judgment is ORDERED , that all paries shall appear at a preliminar courouse , 100 Supreme Cour Drive , Mineola , N. conference at the supreme , lower level , on June 12 2012 , at 9:30 m. No adjourents of this conference will be permitted absent the permission of or order of this court. All paries are forewared that failure to attend the conference may result in judgment by default , the dismissal of pleadings (see 22 NYCRR 202. 27) or monetar sanctions (22 NYCRR 130- 1 et seq. [* 5] 11" f The foregoing constitutes the decision and order of this Court. All applications not specifically addressed herein are denied. Dated: Mineola , New York May 9 2012 Attorney for Plaintiff Smith Caroad Levy & Wan , PC 5036 Jericho Tpke. Commack 11725 , NY Attorney for Defendant Mastroiani & Mastroiani , Esqs. 355 Post Avenue , 2 Floor Westbur, NY 11590 Defendant pro se Mr. Robert Carinell 573 Rutherford Drive Seaford , NY 11783 MAY 14 2012 NASSAU COUNTY COUNTY CLERK'S OFFICE

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