DCF Capital, LLC v US Shale Solutions, LLC

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DCF Capital, LLC v US Shale Solutions, LLC 2017 NY Slip Op 31597(U) July 13, 2017 Supreme Court, New York County Docket Number: 654495/2016 Judge: Shirley Werner Kornreich 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: NEW YORK COUNTY CLERK 07/14/2017 11:45 AM 1] NYSCEF DOC. NO. 46 INDEX NO. 654495/2016 RECEIVED NYSCEF: 07/14/2017 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: JUST~CE SH~RLFV - ·.yr-::•,.. -"-· •. . '?'~!~I? ~. - '-(QP.!\!P~tt:H • iii ... ~ • . _ . __ I Justice ( j I i Index Number: 654495/2016 DCF CAPITAL, LLC vs. US SHALE SOLUTIONS, LLC SEQUENCE NUMBER : 002 INDEX N O . - - - - MOTION DATE b(///7 MOTION SEQ. NO. - - - SUMMARY JUDGMENT The following papers, numbered 1 to _ _ , were read on this motion t o / f o r - - - - - - - - - - - - - - I No(s). 'J /. - 4-1 I No(s). ---'Y"""";l._ _ __ I No(s). lfJ-1/5 Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - E x h i b i t s - - - - - - - - - - - - - - - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Upon the foregoing papers, it is ordered that this mof is ;1'1 o·noN iS DECIDED SN ACCO~D-~NCf W1TH ACCOMPA!"~v~~h3i 1\i!EN10RANDU~; DECISiON AND ORDER u ~ .,, :> ., :> :l u i::: i::: u .&.. u i::: .. Ui z .J .J :> 0 L ti) 3~ u ii::: ~ C> u z i::: - ,, 3: - 0 u ...J ,, ...J ~ 0 .) LL z~ 2 1- - ii::: IE LL ::> 0 7 1. CHECK ONE: ..................................................................... ~ 2. CHECK AS APPROPRIATE: ........................... MOTION IS: ~GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0 0 CASE DISPOSED 0 DENIED 1 of 4 GRANTED IN PART 0 SETTLE ORDER [j DO NOT POST 0 0 NON-FINAL DIS OSITION 0 OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT 0REFERENCE [*FILED: NEW YORK COUNTY CLERK 07/14/2017 11:45 AM 2] NYSCEF DOC. NO. 46 INDEX NO. 654495/2016 RECEIVED NYSCEF: 07/14/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 54 --------------------------------------------------------------------)( DCF CAP IT AL, LLC, Index No.: 654495/2016 DECISION & ORDER Plaintiff, -againstUS SHALE SOLUTIONS, LLC, Defendant. --------------------------------------------------------------------)( SHIRLEY WERNER KORNREICH, J.: In its January 24, 2017 decision on defendant's motion to dismiss, the court explained that "[t]his case concerns defei:idant's failure to make timely interest payments to plaintiff on notes governed by an indenture." See Dkt. 16. 1 The court denied defendant's motion because section 316 of the Trust Indenture Act precludes enforcement of the indenture's no action clause. See id. at 5-6. Plaintiff now moves for summary judgment. Defendant opposes the motion. For the reasons that follow, plaintiffs motion is granted. Summary judgment may be granted only when it is clear that no triable issue of fact exists. Alvarez v Prospect Hosp., 68 NY2d 320, 325 (1986). The burden is upon the moving party to make aprimafacie showing of entitlement to summary judgment as a matter oflaw. Zuckerman v City of New York, 49 NY2d 557, 562 (1980); Friends ofAnimals, Inc. v Associated Fur Mfrs., Inc., 46 NY2d 1065, 1067 (1979). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidence sufficient to establish the existence of material issues of fact. Alvarez, 68 NY2d at 324; Zuckerman, 49 NY2d at 562. The papers submitted in support of and in ?pposition to a summary judgment motion are examined in the light most favorable to the p~rty opposing the motion. Martin v Briggs, 235 AD2d 192, 196 (1st References to "Dkt." followed by a number refer to documents filed in this action on the New York State Courts Electronic Filing (NYSCEF) system. 1 2 of 4 [*FILED: NEW YORK COUNTY CLERK 07/14/2017 11:45 AM 3] NYSCEF DOC. NO. 46 INDEX NO. 654495/2016 RECEIVED NYSCEF: 07/14/2017 Dept 1997). Mere conclusions, unsubstantiated allegations, or expressions of hope are insufficient to defeat a summary judgment motion. Zuckerman, 49 NY2d at 562. After defendant's motion to dismiss was denied, it filed an answer (Dkt. 20), a preliminary conference was held on February 23, 2017 (Dkt. 22), discovery was completed by March 23, 2017, the parties filed a joint statement of undisputed fact on April 12, 2017 (Dkt. 23), and plaintiff filed a Note of Issue on April 20, 2017 (Dkt. 30). Plaintiff filed the instant motion for summary judgment on April 26, 2017, arguing that defendant's non-payment is undisputed and, therefore, there is no question of fact about its entitlement to judgment on the $1 million of principal, $250,000 in missed interest payments between September 1, 2015 and March 1, 20 I 7, $31,250 in accrued default interest through March 1, 2017, plus further accrued interest since that date. See Dkt. 32.at 8-9 . . In opposition, defendant does not dispute its non-payment or plaintiffs calculation of the amounts owed. Rather, defendant argues that summary judgment should be denied because plaintiff supposedly failed to prove _that it presently owns $1 million of the subject notes. See Dkt. 42 at 5-6. Defendant, it should be noted, does not actually deny that plaintiff owns those notes, but merely avers that plaintiff has not proffered sufficient proof of ownership. See id. at 6. Defendant is wrong. Plaintiff submitted an affidavit of its managing partner (Dkt. 33), who affirmed his personal knowledge of plaintiffs ownership of the notes and provided supporting documentation (e.g., Dkt. 45). See Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 359-61 (2015) (plain ti ff establishes prima facie case by submitting affidavit from employee with personal knowledge of possession of note). Defendants have not raised a triable issue of fact. See Red Zone LLC v Cadwalader, Wickersham & Taft LLP, 27 NY3d I 048, I 049 (20 I 6) ("a party may not create a feigned issue of fact to defeat summary judgment."). Accordingly, it is 2 3 of 4 [*FILED: NEW YORK COUNTY CLERK 07/14/2017 11:45 AM 4] NYSCEF DOC. NO. 46 INDEX NO. 654495/2016 RECEIVED NYSCEF: 07/14/2017 ORDERED that the motion by plaintiff DCF Capital, LLC for summary judgment against defendant US Shale Solutions, LLC is granted, and the Clerk is directed to enter judgment in favor of said plaintiff and against said defendant in the amount of $1,281,250 plus 12.5% interest from March 2, 201 7 to the date of this decision and 9% statutory pre-judgment interest thereafter until the date judgment is entered. Dated: July 13, 2017 ENTER: SHlRLEY VVt:KNt:K KOKNr~EaCH J.S~C 3 4 of 4

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