Cach, LLC v Ardsley Luncheonette Ltd.

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Cach, LLC v Ardsley Luncheonette Ltd. 2016 NY Slip Op 32698(U) March 6, 2016 Supreme Court, Westchester County Docket Number: 55381/2014 Judge: Charles D. Wood Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: WESTCHESTER COUNTY CLERK 03/07/2017 03:07 PM 1] NYSCEF DOC. NO. 29 INDEX NO. 55381/2014 RECEIVED NYSCEF: 03/07/2017 To commence the statutory time period for appeals as of right (CPLR 55 13 [a]), you are advised to serve a copy of this order, with nolice of entry. upon all parties SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTC'HESTER --------------------------------------------------------------------------------)( CACH, LLC, DECISION & ORDER Index No. 55381/2014 Sequence o. 1 Plaintiff, -againstARDSLEY LUNCHEONETTE LTD, and PARAMJIT AHUJA, as Guarantor, Defendants. -------------------------------------------------------------~-------------------)( WOOD,J. The following documents were read in connection with plaintiffs motion for summary judgment and default judgment: Plaintiffs Notice of Motion, Counsel's Affirmation, Huber's Affidavit, Exhibits. Defendants' Affidavit in Opposition. Plaintiffs Counsel Reply. Plaintiff moves for an order pursuant to CPLR 3212 granting summary judgment in its favor, against defendant Paramjit Ahuja, and default judgment against Ardsley Luncheonette LTD, in the amount 01'$48,965.49, together with costs and disbursements, and the individual defendant having appeared in this action, and having interposed an opposition to the instant motion, and corporate defendant has not, and Based upon the foregoing, the motion is decided as follows: On February 19,2008, Wachovia Bank, NA issued a business credit line account to corporate defendant, with individual defendant as guarantor pursuant to a guaranty agreement. In 2008, Wells 1 of 5 [*FILED: WESTCHESTER COUNTY CLERK 03/07/2017 03:07 PM 2] NYSCEF DOC. NO. 29 INDEX NO. 55381/2014 RECEIVED NYSCEF: 03/07/2017 Fargo Bank, N.A. acquired Wachovia Corporation. Defendant's account then became property of plaintiff. A Bill of Sale memorializes that assignment (Ex F). Defendants received purchases, advances, cash, merchandise and/or credit on the line. Defendants have failed to make payments on this credit line, and there is a balance due and owing, together with costs and disbursements. Plaintiff commenced this action on April 10, 2014. On May 16, 2014, individual defendant by counsel, filed and served an answer. Plaintiff, who is the assignee of this debt, seeks summary judgment against defendants on the basis of breach of contract and an account stated. It is well settled that a proponent of a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v N.Y.U. Med. Ctf., 64 NY2d 851, 853 [1985])., "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the movant has met this threshold burden, the opposing party must raise a triable issue of fact (Zuckerman v New York, 49 NY2d 557, 562 [1980]). In deciding a motion for summary judgment "the party opposing the reliefis entitled to the benefit of every favorable inference that may be drawn from the pleadings, affidavits and competing contentions of the parties" ruicklas v Tedlen Realty Corp., 305 AD2d 385, 386 [2d Dept 2003]; Brown v Outback Steakhouse, 39 AD3d 450, 451 [2d Dept 2007]). In support of its motion, plaintiff offers the affidavit of Peter Huber, authorized agent and custodian of records for plaintiff who attests that based upon the documentation he reviewed, defendants never disputed the validity of the balance owed or notified plaintiff of any recognizable defenses, claims, offsets or counterclaims to the balance due and owing, and as such, an account 2 2 of 5 [*FILED: WESTCHESTER COUNTY CLERK 03/07/2017 03:07 PM 3] NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 03/07/2017 stated was created. Huber confirms that $49.965.49 together with costs and disbursements Individual arbitration. defendant However, provision is permissive Defendant plaintiffs to plaintiff of this action. counsel argues that the Agreement and that one party or another since the relief is limited to make it clear that arbitration has to elect Arbitration in order for the Neither party has ever elected to use the Arbitration provision. also argues that his name does not appear on the Wells Fargo Business Customer Agreement, However, Agreement, is due and owing by defendants argues that the action must be dismissed provision to become effective. contract. INDEX NO. 55381/2014 effective January 1,2008, and thus, cannot be cause of action for breach of this is belied by the record as the Application Maximum Credit Limit and the borrower the guaranty of the individual defendant. in a general form - unsigned, and containing in question, upon review of plaintiffs plaintiff are evidence of an active listed is the corporate no information submissions, to the type of statements customers. Based upon the foregoing, entitlement to judgment defendant, the date of along with offered by plaintiff is that links it to the particular copies of the monthly statements account. No credible conforming (Ex C) denotes While it is true that the Agreement should not be viewed as reliable and trustworthy. Line reasons account submitted by were offered why these records They appear regular on their face, and in a format with which financial institutions the court finds that plaintiff customarily supply their has demonstrated prima facie on liability as a matter of law on' its breach of contract cause of action, and defendant has failed to raise a triable issue of fact. In light of the foregoing, plaintiff establishes breach between of contract performance action by demonstrating by the plaintiff, the existence breach by defendants of a contract and damages resulting 3 of 5 the parties, from the breach (JP Morgan Chase v J .H. Elec. of New York, Inc., 69 AD3d 802, 803 [2d Dept 2010]). 3 a [*FILED: WESTCHESTER COUNTY CLERK 03/07/2017 03:07 PM 4] NYSCEF DOC. NO. 29 INDEX NO. 55381/2014 RECEIVED NYSCEF: 03/07/2017 Further, "an account stated is an agreement, express or implied between the parties to an account based upon prior transactions between them with respect to the correctness of account items and balance due on them" (Citibank (S.D.) N.A. v Cutler, 112 AD3d 573 [2d Dept 2013]). "An agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account" (Citibank (South Dakota),NA. v Brown-Serulovic, 97 AD3d 522 [2d Dept 2012]). As hereinabove mentioned, plaintiff submitted an affidavit from a custodian of its records, which records included the books and records of the original creditor, who averred that the account statements were mailed to defendants advising them of their delinquencies and demanding payment, and defendants never challenged or disputed the validity of the amount owed. This evidence, together with the account statements was sufficient to establish plaintiff's prima facie entitlement to judgment as a matter of law on the complaint (Cach, LLC v Aspir, 137 AD3d l065, 1066 [2d Dept 2016]). In opposition, defendants failed to raise a triable issue of fact. Accordingly, for the stated reasons, it is hereby ORDERED that the motion is granted and plaintiff is awarded summary judgment against defendant Paramjit Ahuja, and pursuant to CPLR 321 5(d) directing the entry of default judgment against defendant Ardsley Luncheonette LTD, in the amount of$48,956.49, together with costs and disbursements as computed by the clerk of this court, and plaintiff shall have execution thereof; and it is further ORDERED that plaintiff shall, upon notice to defendants, submit a copy of this Order and judgment with a bill of costs to the Westchester County Clerk for entry; and it is further 4 4 of 5 [*FILED: WESTCHESTER COUNTY CLERK 03/07/2017 03:07 PM 5] NYSCEF DOC. NO. 29 INDEX NO. 55381/2014 RECEIVED NYSCEF: 03/07/2017 ORDERED, that plaintiffis directed to serve a copy of this Decision and Order, with notice of entry, upon defendants within 10 days of such entry and file proof of service within five (5) days of service pursuant to the protocols ofNYSCEF; and it is further ORDERED, that the Clerk shall mark his records accordingly. All matters not herein decided are denied. This constitutes the Decision and Order of the court. Dated: March 6, 2016 White Plains, New York To: Daniel Hong, Esq. Daniels Norelli Scully & Cecere, P.C. Attorneys for Plaintiff 272 Duffy Avenue Hicksville, New York 1180 I Harvinder P Julka, Esq. Attorney for Defendant 119-02 Liberty Avenue, 2nd Floor Richmond Hill, New York 11419 5 5 of 5

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