OSK IX LLC v Frankie Cab Corp.

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OSK IX LLC v Frankie Cab Corp. 2021 NY Slip Op 32824(U) December 29, 2021 Supreme Court, Kings County Docket Number: Index No. 527928/2021 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 12/29/2021 11:36 AM INDEX NO. 527928/2021 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 12/29/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS l CIVIL TERM: COMMERCIAL PART 8 ------------------------ ---- ----- ~-----x OSK IX LLC, Plaintiff, Decision ahd order Index No. 527928/2021 - against FRANKIE CAB CORP. and RACHEL LEVINGER, Defendants, December 29, 2021 ·-·---·--· --- . - ·-- ··. -. . ··---·. -- . -· --·-. -------x PRESENT: HON. LEON RUCHELSMAN The plaintiff has moved pursuant to CPLR §3213 seeking summary judgement in lieu of a complaint. opposed the motion. argt1ments held. The defehdants have Papers were submitted by the parties and After reviewing all the arguments this court now makes the following determination. On January 21, 2015, the defendant Frcinkie Cab Corp., as borrower exeputed a promissory note to the plaintiff's predecessor ih interest in the amount of $925;000. Rachel Levinger guaranteed the <iebt. The defendant The agreement was amended and required monthly payments and a balloon payment on the maturity dclte of January 1, 2021. The defendants did not make the balloon payment due at maturity and on Augµst 5, 2D21 the plaintiff served a demand letter informing the defendants the full amount was now due and that they owed $837,984.41. The plaintiff has instituted this l.cJ.wsuit and has now.moved seeking s1.rmmary judgement concerning the note in the amount of $797,577.58 plus accr.ued and accruing interest, fE2!es ,. costs .and disbursements a~ stated in the motion. 1 of 4 [*FILED: 2] KINGS COUNTY CLERK 12/29/2021 11:36 AM INDEX NO. 527928/2021 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 12/29/2021 Gonclusions of· Law Tt is well settl·ed that in ot-de.r to be entitled -to judgement as a matter of law Jmrsuant to CPLR §321"3 the mova:ht must demonstrate that the other party e~ecuted an instrument that contains an uneqilivocal and unconditional promise to repay the party upon demand. o_r c;tt a definite time and the party-· fa"iled to pay according to -the .t~-rms of the i-ns.trument {Mirham v. Awad 1 131 AD3d 1211; 17 NYS3d 473_ [2d Dept., 2015] ) . A promissory n,ote is an instrµment for the payment of money only and when sufficient ~vidence is presetited concerning the circumstance$ upon which it w.a,s ·given then a §3-2T3" motion is ap_p:rop:r"ii:ite (Kim v·.- ·:t"l .Yeo:h Kwon, 144 AD3d 75:4,. 41 NYS3d 68 [-2d :nept., 2016]),. T-hu·s, the rnovant must establish the instrument is ''facially incontestable" (J. Juhn Associates. Inc., v, 3625 Oxford Avenue ~ssociates L.P., 8 Mi-s._c:3d 1009 {A) , -8 0.1 NYS2d 77 8 [Supreme· Court Nas-sa-u County -2005":]). Theiefo.r_e, _whe_re a d~fenda-nt c-an raise que-stio_n~ of fact that the notes w·er.e not instruments .for the paymen.t. of money only then summary judgement must be denied (Farca v. Farca, 216 AD2d 5.20, 628 NYS2d 78.2 [2d Dept., 1995] ). Therefore, where a- party ihtr6duces. evidence ·of the· exis.t..ence of a loan, personal guaran:i:ee·s_ and th~ de-;f.endant' s failure to ina.ke payments· according to the terms o-f the instruments then summary judgement is proper (s.ee, JPMorgan Chase. Bank N.A .• v. Bauer, 92 Ab3ct 641, 938 NYS2d.19.0 [2d Dept., 2 of 4 [*FILED: 3] KINGS COUNTY CLERK 12/29/2021 11:36 AM NYSCEF DOC. NO. 25 2012]). INDEX NO. 527928/2021 RECEIVED NYSCEF: 12/29/2021 In this case, the plaintiff submitted the affidavit of Ivan Feldman an asset manager of the ·servicer of the plaintiff who stated that he reviewed the bank's records in connection with the loans extended. He further stated that all the documents he reviewed were maintained in the regular course of business and all such records were made near their occurrence with someone who had knowledge at that time and that the bank's standard practice is to keep such records in the ordinary course of business. Thus, the plaintiff has established the admissibility of the records relied upon since Mr. Feld~an had knowledge of the bank's practices and procectures (see, Cadlerock Joint VentureL.P. v. Trombley, 150 AD3d 957, 54 NYS3d 127 [2d Dept., 2017]). Further, Mr. Feldman states that as of the date bf his affidavit the amount owed is $871,168.66. Therefore, the plaintiff established its entitlement to summary judgement. The defenda.nts have not presented any evidence raising questions of fact whether the debt has been paid. Rather, the defendants challenge the precise amount owed rioting that the papers Submitted contain discrepancies. However, the plaintiff has sufficiently explained that no such discrepancy exists and that as of December 9, 2021 the anicnint owed is $682,205.71 with ihte.rest accruing at the rate of .$16.9. 11 each day~ In. addition; th.e defend:ants have not presented any affidavit with anyone possessing personal knowledge challenging the amounts sought py 3 3 of 4 [*FILED: 4] KINGS COUNTY CLERK 12/29/2021 11:36 AM NYSCEF DOC. NO. 25 INDEX NO. 527928/2021 RECEIVED NYSCEF: 12/29/2021 the plaintiff. Therefore, there are no questions of fapt that have been r:aised which demand a denial of the moti-on seeking summary judgement. Consequently, the motion seeking summary judgemlc!nt is granted for the amounts noted: $682,205.71 with interest accruing at the r?te of $169.11 each day! So ordered. ENTER: DATED: Oepember 29, 2021 Brooklyn N.Y. JSC 4 4 of 4

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