Inta-Boro Acres, Inc. v Duzel
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Inta-Boro Acres, Inc. v Duzel 2017 NY Slip Op 31247(U) June 1, 2017 Supreme Court, Suffolk County Docket Number: 19927/2014 Judge: William B. Rebolini 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. [* 1] con Short Form Order SUPREME COURT- STATE OF NEW YORK I.A.S. PART7 - SUFFOLK COUNTY PRESENT: WILLIAM B. REBOLINI Justice Inta-Boro Acres, Inc., Plaintiff, -against- Motion Sequence No.: 001; MD Motion Date: 9/30/16 Submitted: 10/26/ 16 Index No.: 19927/2014 Mustafa Haluk Duzel a/k/a M. Haluk Duzel a/k/a Mustafa H. Duzel a/k/a Haluk Duzel, Defendant. Attorney for Plaintiff: John M. Stravato, Esq. P.O. Box 298 Bethpage, NY 11714 Attorney for Defendant: Tayfun C. Yalcin, Esq. 1807 73rd Street Brooklyn, NY 11204 Clerk of the Court Upon the following papers numbered 1 to 24 read upon this motion for summary judgment: Notice of Motion and supporting papers, 1 - 11; Answering Affidavits and supporting papers, 12 18; Replying Affidavits and supporting papers, 19 - 24; it is ORDERED that the motion by the plaintiff for an order pursuant to CPLR 3212 granting summary judgment in its favor is denied. In this action for breach of contract and unjust enrichment, the plaintiff seeks damages allegedly recoverable when the plaintiff was obligated to pay two debts owed by the defendant to nonparty Bay Ridge Federal Credit Union (Bay Ridge). The plaintiff commenced this action by the filing of a summons with notice on October 9, 2014. After service of the complaint, the defendant joined issue by the service of an answer dated December 27, 2014 containing five affirmative defenses. The plaintiff filed a note of issue and certificate of readiness on June 14, 2016, despite its acknowledgment that the parties did not serve any discovery demands or depose one another. [* 2] Jnta-Boro Acres, Inc. v Duzel Index No.: 19927/2014 Page 2 It appears that the plaintiff is a "car service cooperative company" which provides dispatch services to its shareholders via "radio calls.'' 1 The plaintifPs shareholders operate taxis and derive their income from the business generate by the dispatch of calls to them. It is undisputed that the defendant obtained a loan in the amount of $25,500 from l3ay Ridge in May 20 I 0 secured by his shares or stock in '·Jntra-Boro radio number I 05." On May 26, 2010, the defendant executed a voucher deduction agreement (VOA) with the plaintiffauthorizing the plaintiffto deduct fonds from the payments due to him under the dispatch system to make payments to Bay Ridge. The defendant obtained a loan in the amount of$25,000 from Bay Ridge in April 2013 secured by his share of stock in ·'lntra-Boro radio number 140." On J\.pril 26, 2013, the defendant executed a voucher deduction agreement (VD/\.) with the plaintiff to the same effect as the prior agreement. Both VOA 's are supported by respectively dated letters or understanding (LOU) from the plaintiff to Bay Ridge setting forth, among other things, the plaintiff's obligations regarding the defendant's loan agreement, and the rights of the plaintiff and Bay Ridge regarding the shares or stock pledged as security for the respective loan. It appears that the defendant defaulted on the loans he obtained from Bay Ridge. In its complaint, the plaintiff sets fo1th two causes or action. In its first cause of action, the plaintifT alleges, among other things, that it agreed in the VDA 's ''to make such payments to [Bay Ridgel even if sufficient vouchers had not been submitted," and that it has been damaged in the amount of $50,500. In its second cause of action, the plaintiff alleges that it "made it possible for the defendant to borrow1he necessary fu nds from fBay Ridge] to purchase the 1 radios' ... from which the defendant derived the benefits of ownership," and that "[a]s a direct result, ... the defendant was enriched through O'vvncrship of the radios and use of the proprietary system ... fandj derived a regular stream of income from the radios." The plaintiff now moves for summary judgment in its favor. In support of its motion, the plaintiff submits the plead ings, the a1Ttdavi t 0 r its president, the affirmation 0 r its attorney> and the subject VDA's with their accompanying LOU. ln his affidavit, Aamir Haq (Haq) swears that he is the plaintiff's president, that the defendant agreed to have weekly deductions withheld "from moneys owed to him by lntra-boro in order for lntra-boro to make the required payments to (Bay Ridgel,'' and that the defendant defaulted on the subject Joans. He states that the defendant was "no longer submitting sufficient vouchers to cover the payments Lo [Bay Ridge J, that " lntra-boro ceased to make payments to rnay Ridgej," and that Bay Ridge "sought the remaining payments from Intra-boro." He indicates that the pJajntiff paid $16,863.20 to satisfy the defendant's obligation on the May 20 I 0 loan, and $21 ,636. 94 to satisfy the defendant's obligation on the J\.pril 2013 loan, and he requests judgment in the amount of $38.500.14. In his affinnation, counsel for the plaintiff contends that the plaintiffs submission meets its burden of establishing entitlement to summary judgment, that the defendant has failed to deny any of the allegations in the complaint in his answer, and that none of the defendant's affirmative 1 In the absence of discovery, the parties have not always been successful in conveying the details of their interactions, business activities, and business operations, or the customs and practices of their industry. [* 3] lnta-Boro Acres, Inc. v Duzcl Index No.: 19927/2014 Pagc3 defenses have merit. Counscrs contention that the defendant has admitted the allegations in the complaint because the answer indicates that the defendant denies having knowledge and information sufficient to form a belief as to certain allegations is without merit. More importantly, the affirmation of counsel for the plainti ff docs not address the merits of the majority of the defendant' s affirmative defenses, merely stating that the defendant "has offered no proor' regarding said defenses. CPLR 3212 (b) provides in pertinent part: "A motion for summary judgment shall be supported by affidavit ... and by other available proof ... and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit." The plaintiff has failed to demonstrate the absence of triable issues of fact on every issue raised by the pleadings (see Stone v Co11tine11tal Ins. Co., 234 AD2d 282, 650 NYS2d 772 [2d Dept 1996];Aimalop R estauraut, file. v Liberty Mut. Fire Ins. Co. , 74 AD2d 516, 425 NYS2d 8 [1st Dept 19801). Jn addition, the plaintiff has failed to established its prima facie entitleml!nt to summary judgment in its favor on the causes of action in its complaint. The proponent of a summary judgment motion must make a prima facic showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v Prospect Jlosp., 68 NY2d 320, 508 NYS2d 923 11986); Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 3 16 [ 1985]). The burden then shifts to the paity opposing the motion which must produce evidcntiary proof in admissible form sufficient to require a trail of the material issues of fact (Roth v Barreto, 289 AD2d 557, 735 NYS2d I 97 l2d Dept 2001]; Rehecclzi v Whitmore , 172 AD2d 600, 568 NYS2d 423 r2d Dept l991J; O'Neillv Town of Fishkill, 134 AD2d 487, 521NYS2d272 l2d Dept 1987]). Furthem1ore, the parties' competing interest must be viewed "in a light most favorab le to the party opposing the motion" (Mari11e Midland Bank, N.A. v Dino & A rtie's A utomatic Tra11smissio11 Co. , 168 A02d 610, 563 NYS2d 449 [2d Dept 1990J). The common law clements of a cause of action for breach of contract arc ( 1) the existence o f a contract between the plaintiff and th<.! defendant, (2) performance by the plaintiff, (3) the defendant's failure to perform, and (4) resulting damage (Second Source Funding, LLC v Yellowsto11e Capital, LLC, 144 A03d 445, 40 NYS3d 410 l 1st Dept 2016); Hampshire Props. v BTA Building. & Developiug, Ille., 122 A03d 573, 996 NYS2d 129 12d Dept2014J). The subject VDA 's contain identicaJ language, an<l provide in pertinent part that: Whereas [Bay RidgeJ has indicated its willingness to grant the loan and/or accept the collateral upon certain conditions (which include but are not limited to) that the borrower shall authorize lthe plaintiffl and [the plaintiff] shall agree to a) deduct from accounts due fthe defendant] and remit to fl3ay Ridge] for payments on the loan amounts sufficient to maintain the loan in good standing and b) withhold work assignments and payments to lthe defendant] upon Bay Ridge's ] request in the event th<.! Loan becomes in default. The subject VDA's further provide. among other things, that the defendant authorizes the plaintiff to deduct monies "next due.. to the defendant if his weekly vouchers arc insufficient to pay an installment due to Bay Ridge, and to remit the authorized deductions to Bay Ridge "on a timely [* 4] [nta-Boro Acres, Inc. v Duzcl Index No.: 19927/20 14 Page 4 basis, until it receives written notice from lBay Ridge] lhal lhe Loan has been paid in full." In paragraph 2, entitled "J\gcncy;· the VDA ·s provide in pertinenl part: "P'he defcndantj acknowledges the [the plaintiffJ is not hereby assuming any payment obligations of(the defendant] to l Bay Ridge]; and that [lhc plaintiff] shall not be obligated to take any action on behalf off the defcndantJ with respect to [the defendant's] paymenl obligations to lBay Ridge ] other than as specified in [the section authorizing deductions and the remitting of the subject payments to Bay Ridge]." The subject LOU· s provide, among other things, that the plaintiff consents to the use of the defendant's shares of stock as collateral for the subject loans. that its liens, if any, shall be subordinate lo Bay Ridge's liens, and that it will not charge certain fees to Bay Ridge or the ddendant in the event of the foreclosure and sale of the subject col lateral. In paragraph 4, entitled "Withholding Calls and Payments,'' the subject LOU's provides in pertinent part: Upon written notice from IBay Ridge] that the loan is in default fthc plaintiffl will not permit use of (the plaintifrs I network dispatch and billing syslem by anyone using the Collateral (take off the air), and will not permit payment of accounts due [the dcfendantl pending execution of P3ay Ridge'sJ rights under the Security lntcrest in the Steck and security interest in the accounts." The plaintiff has failed to establish its prima facie entitlement to summary judgment on its lirst cause of action herein. In addition to ils failure to eliminate all issues of fact regard ing the defendant's anirmati ve defonses, the plaintiff bas foiled to submi t admissible evidence that it had any obligation to pay the outstanding debt allegedly owed to Bay Ridge on behalf of' lhc de fondan t, the amount that it paid to Bay Ridge, and the actions taken by Bay Ridge, if any, to recover the outstanding loan amounts from the defendant or the plaintiff. A party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, as such party must affirmatively demonstrate the merit of his or her claim or defense as a malter of law (Velasquez v Gomez, 44 /\d3d 649, 843 NYS2d 368 pd Dept 2007]). Further. to succeed on a claim for unjust enrichment, a plaintiff must establish that the defendant was enriched at the plaintiff's expense, and that ·'it is against equity and good conscience lo permit the defendant to retain what is sought lo be recovered~· (Paramount Film Distrib. Corp. v S tate of New York, 30 NY2d 415, 421 , 334 NYS2d 388I1972j, cert. denied 414 US 829. 94 S Ct 57 fl 973 J; see Whitman R ealty Group v Galan o, 41 AD3d 590, 838 NYS2d 585 (2d Dept 20071; Cruz v McA 11e11ey, 31 AD3d 54, 816 NYS2d 486 I2d Dept 2006)). Herc, the plaintiff has failed, among other things, to submit any evidence regarding the foreclosure and sale of the subject collateral, whether the collateral was purchased in foreclosure or otherwise by the plaintiff or a third-party, and what rights it obtajned in the collateral by the alleged [* 5] lnta-Boro Acres, Inc. v Duzcl Index No.: 19927/2014 l'age 5 payment of the outstand ing loan balances to Bay Ridge. In addition, the plaintiff has fa iled to submit any evidence that it assisted the defendant in the purchase of the shares of stock which were used as collateral herein, or how it would be inequitable to allow the defendant to retain the income he earned from the dispatch system prior to his alleged default in repaying the subject loans. Moreover, it has been held that recovery for unjust enrichment is barred if there is a valid and enforceable contract between the parties (see Clark-Fitzpatrick, Inc. v Long ls. R.R. Co. , 70 NY2d 382, 521 NYS2d 653 r1987J; Whitman Realty Group v Galano, supra; Stark v City of New York , 3 1 l\D3d 530, 818 NYS2d 281 [2d Dept 2006 J). /\s a triable issues exist regarding the enforceability of the subject documents, summary judgment on the ground of unjust enrichment is denied (see Sterlacci v Gurfein, 18 AD3d 229, 794 NYS2d 362 [1st Dept 2005 J; Carriafielio-Diehl & Assocs. v D & M Elec. Co11tr., 12 AD3d 478 , 784 NYS2d 617 [2d Dept 2004 1). Because summary judgment deprives the litigant of his or her day in court, it is considered a "drastic remedy'' which should be invoked only when there is no doubt as to the absence of triable issues (Andre v Pomeroy, 35 NY2d 361 , 364, 362 NYS2d 131 [1974]; E /zer v Nassau County, 111 AD2d 2 12, 489 NYS2d 246 [2d Dept 1985 1). Indeed, where there is any doubt as to the existence of triable issues, or where the issue is even arguable, the Court must deny the motion (Clzilherg v Chi/berg, 13 AD3d 1089. 788 NYS2d 533 [4th Dept 2004], rearg denied 16 AD3d 1181 , 792 NYS2d 368 [4th Dept 2005J; Barclay v De11ckla, 182 AD2d 658, 582 NYS2d 252 l2d Dept 1992); Collen v Herbal Concepts, l11c., 100 AD2d 175, 473 N YS2d 426 l l st Dept 19841, q[fd 63 NY2<l 379, 482 N YS2d 457f19841). Failure to make a prima focie showing of entitlement to summary judgment requires a denial of the motion, regardless of the sufficiency of the opposing papers (see A lvarez v Prospect Hosp. , supra; Wi11egrad v New York Univ. Med. Ctr. , supra; Martinez v 123-16 Liberty Avenue. Realty Corp. , 47 /\D3d 901, 850 NYS2d 201 [2d Dept 20081). Accordingly, the plaintiffs motion for summary judgment on the second cause of action for unjust enrjchment is denied, and the motion :.:::ied i°ift/;;~ 1fk~ 6 aL V HON. \VILLIAM B. REBOLINI, J .S.C. _ _ _ FINAL DISPOSITION 2 X NON-FI NAL DISPOSITION The plaintiff's submission, the defendant's opposition papers, and the plaintifrs reply papers contain un-tabbed exhibits. In the future, it is requested that counsel properly tab exJ1ibitc; or, at a minimum, separale exhibits with differently colored papers, as the lack of tabbing or the use of white papers to separate exhibits renders it ditlicult for the Court to match arguments to documents and to sort through the exhibits (see Zambrano v Mendez, 2013 NY Slip Op 32450fUl[Sup Ct, Suffolk County 2013]; De/Vecellio v Sciacca, 2012 NY Slip Op 33088[UJLSup Ct, Suffolk County 2012]; Yo1111gewirtfl v Town of Ramapo Town Br!. , 29 Misc 3d 1221 [A], 918 NYS2d 40 I [Sup Ct, Rockland County 20 I01).
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