Matter of DeMarco (Earth Structures, Inc.)

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Matter of DeMarco (Earth Structures, Inc.) 2019 NY Slip Op 33070(U) October 10, 2019 Supreme Court, Kings County Docket Number: 519370/18 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] KINGS COUNTY CLERK 10/15/2019 12:48 PM INDEX NO. 519370/2018 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 10/15/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM : COMMERCIAL 8 -------------------------------------- - - --x In the Matter of the Application of LOUIS DEMARCO , Petitioner, Decision and order Index No . 519370/18 For Judicial Dissolution of EARTH STRUCTURES, INC ., Pursuant to Section 1104-a of the Business Corporation Law October 10, 2019 ------------------------------------------x FELDMAN LUMBER-US LBM, LLC d/b/a FELDMAN LUMBER, Index No. 520353/18 Plaintiff, - against EARTH STRUCTURES INC . , AND LOUIS DEMARCO, Defendants, ------------------------------------------x PRESENT: HON . LEON RUCHELSMAN The plaintiff Feldman Lumber has moved seeking summary judgement pursuant to CPLR §3212 on the grounds there are no questions of fact concerning the guaranty signed by the defendant Louis Demarco. The defendant opposes the motion. submitted by the parties and arguments held . Papers were After reviewing all the arguments this court now makes the following determination . On September 29, 2014, Feldman Lumber entered into an agreement with Earth Structures guaranteeing payment of all invoices for items sent by Feldman Lumber. 1 of 4 The defendant Louis [*FILED: 2] KINGS COUNTY CLERK 10/15/2019 12:48 PM NYSCEF DOC. NO. 93 INDEX NO. 519370/2018 RECEIVED NYSCEF: 10/15/2019 Dema rco executed the guaranty in his individual capacity . Feldman Lumber has now moved seeking summary judgement arguing t here are no questions of fact the defendant owes $37 , 670 . 61 p l us interest at the rate of 1 . 5 % per month from January 12, 2018 plus attorney's fees . The defendant opposes the motion arguing there are questions of fact . Conclusions of Law Summary Judgment may be granted where the movant establ ishes sufficient evidence which would compel the court to grant judgment in his or her favor as a matter of law (Zuckerman v. City of New York , 49 NY2d 557, 427 NYS2d 595 [1980) ) . Summary Judgment would thus be appropriate where no right of action exists foreclosing the continuation of the lawsuit. It is well settled that a prima f acie showing sufficient for summary j udgment is made by submitt ing proof of an unde r ly i ng agreement , the p e rs ona l gu a rant y of the o b liga t i o ns under that agreeme nt, and the fail ur e to ma ke payment in accordance with the terms of t h e agreement (HSBC Bank USA , N.A. v . Laniado , 72 AD3d 645 , 897 NYS2d 514 [2d Dept 2010)). Moreover, in this case , the guarantee was clea rly accompanied by consideration, namely the inducement by the plaintiff to provide the loan (see, Dabriel , Inc ., v . First Paradise Theaters Corp . , 99 AD3d 517, 952 NYS2d 506 [1 st Dept., 2012)). The defendant does not deny the existence of the debt . Rather , he argues that he was not aware 2 2 of 4 [*FILED: 3] KINGS COUNTY CLERK 10/15/2019 12:48 PM NYSCEF DOC. NO. 93 INDEX NO. 519370/2018 RECEIVED NYSCEF: 10/15/2019 he was the sole guarantor of the debt and that he believed another individual, Jeanine Garafola would also sign the document . While the guaranty does consist of two spaces for the signatures of two individuals and the language of the guaranty is written as "I/WE" indicating the possible existence of another signatory, in fact only the defendant signed the document. Thus, a party that signs and agrees to a contract is generally presumed to know the contents of the contract and to have assented to its terms (Choung v. Allstate Insurance Co. , 283 AD2d 468, 724 NYS2d 882 [2d Dept . , 2001]) . Therefore, the defendant ' s thoughts as expressed in his affidavit that he was never told he "was going to be the sole guarantor" (see, Affidavit of Louis De Marco, ~ 6) does not raise any question of fact sufficient to def eat summary judgement. Equally unavailing is the argument that Jeanine Garafalo promised to hold Demarco harmless from any liabilities related to Earth Strcutures Inc. While that may be true and Demarco can surely pursue that claim against Garafalo it does not alter the validity of Demarco ' s guaranty as related to Feldman Lumber . Lastly, Demarco argues that he left Earth Structures on December 31, 2016 and that the debt sought in this action was incurred after that date , therefore, Demarco cannot be responsible for that debt. It is true that the guaranty states that "materials may be sold and credit extended to the applicant 3 3 of 4 [*FILED: 4] KINGS COUNTY CLERK 10/15/2019 12:48 PM NYSCEF DOC. NO. 93 " INDEX NO. 519370/2018 RECEIVED NYSCEF: 10/15/2019 . . .. without notice to Guarantors , who hereby waive presentment , demand , protest or evidence of indebtedness" (see , Credit Application and Agreement , ~ 3). Further, the Agreement states that the guaranty shall exist "unconditionally , at all times" (see, Credit Application and Agreement, bound Demarco despite his departure. ~ 4) . Thus, the guaranty Demarco argues that Feldman Lumber was aware he was no longer involved with the company. However., there is no proof supporting that contention and indeed the contention is disputed by evidence submitted that even though Demarco might have formally exited the company he was still involved in some capacity . In any event , there has been no evidence presented that Feldman Lumber could have reasonably believed Demarco someone abrogated the guaranty or that the guaranty was no longer enforceable . To the extent Demarco must pay for materials he never ordered, that issue can be further pursued by Demarco against Garafalo . Therefore, based on the foregoing, the motion of Feldm~n c Lumber seeking summary judgement is granted . So ordered . ENTER : DATED : October 10 , 2019 Brooklyn NY Hon . Leon Ruche JSC 4 4 of 4 ( ·.

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