91-10 146, LLC v Sunshine Dev. Sch., Inc.

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91-10 146, LLC v Sunshine Dev. Sch., Inc. 2021 NY Slip Op 33165(U) November 29, 2021 Supreme Court, Queens County Docket Number: Index No. 723825/2020 Judge: Marguerite A. Grays 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] QUEENS COUNTY CLERK 11/29/2021 03:38 PM INDEX NO. 723825/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/29/2021 Short Form Order NEW YORK SUPREME COURT - QUEENS CO . TY Present: HONORABLE MARGUERITE A. GRAYS Justice IAS PART~ ----------------------- ---------------------------------------------x 91-10 146 LLC Index No.: 723825/2020 Plaintiff(s), Motion Dat d: August 31 , 2021 Motion Cal. o. : -againstSUNSHINE DEVELOP11ENTAL SCHOOL, INC. , and MICHAEL KOFFL R, Motion Seq. No.: 2 FILED 11/29/2021 COUNTY CLERK QUEENS COUNTY Defendant(s). ----------------------------------------------------------------------x The following papers numbered EF26-EF40, EF43 and EF46 read on this motion by plaintiff 91-10 146 LLC for an order: (1) pursuant to CPLR §3212, granting summary judgment against the defendants ; (2) directing entry of a money judgment in favor of plaintiff and again t defendants in the amount of $153 050 ; and (3) awarding plaintiff a judgment for its reasonable attorneys ' fees, costs and disbursements. otice of Motion Affid.-Exhibits..... ... ..................... ... Answering Affid. -Exhibits............................. ..... ... ..... Reply Affid.-Exhibits.................................................. Memoranda of Law. ........ ............ ......... ...................... . PAP RS NUiVIBERED EF26 - EF 37 EF39 EF43 EF3 8, EF40, EF46 Upon the foregoing papers it is ordered that tho e branches of this motion which are for summary judgment against the defendants in the amount of $153,050 for principal and contractual interest are granted, and the Clerk of the Court is directed to enter judgment in the amount of 153,050 plus interest at the statutory rate. The branch of this motion which concerns attorney's fees is denied without prejudice to renewal. 1 of 4 [*FILED: 2] QUEENS COUNTY CLERK 11/29/2021 03:38 PM NYSCEF DOC. NO. 50 INDEX NO. 723825/2020 RECEIVED NYSCEF: 11/29/2021 I. The Facts 91-10 146, LLC ( plaintiff or "the lender") owns property located at 91 - 10 146th Street, Jamaica, ew York 11435 (the premises), which is rented to defendant unshine Developmental School , Inc. (Sunshine School or "borrower' ). To pay off 153 050 in rental arrears the plaintiff and Sunshine School entered into a Loan Agreement dated December 17, 2019, as evidenced by a Note, whereby the plaintiff loaned Sunshine School $153 ,050 (the loan). The plaintiff secured the ote with a Guaranty from defendant Michael Koffler. The Guaranty states that it was "an absolute and unconditional guarantee of payment and performance, ' and it obligated the guarantor to pay the sums due under the ote in case of default by the borrower. The Loan Agreement states: ' as of the date of this Agreement ADRC is the Tenant and Sunshine is the Subtenant of the Premises in accordance with the Lea e and Sublease.' While the Loan Agreement further states: ADRC and Sun hine Gointl and severally Borrower ) are in default in the payment of Basic Rent and Additional Rent ' only defendant Sunshine School signed the Loan Agreement and the Note as borrower. The Loan Agreement and the ote required defendant un hine School to make month I payments of interest only in the amount of 765.00 on the lYhday of each month from December 15, 2019 through August 15 2021 and then between September 15 2021 and October 15, 2022, Sunshine School was to make monthly payments of interest and principal in the amount of $11 ,347. The defendant borrower defaulted on payments due under the Note and Loan Agreement. The Loan Agreement contained an acceleration clause, and by letter sent on ovember 30, 2020 the plaintiff declared the outstanding principal balance of the loan and other sums due under the Loan Agreement to be immediately due and payable in full. II. Discussion ' To make a prima facie showing of entitlement to judgment as a matter of law in an action to recover on a ote, and on a Guaranty thereof, a plaintiff must establish the existence of a Note and Guaranty and the defendants' failure to make payments according to their terms" (JPMorgan Chase Bank, NA . v. Galt Grp., Inc. , 84 AD3d 1028, 1029 [2011] ; JP Morgan Chase Bank, NA. v. Rads Grp., Inc. 88 AD3d 766 [2011]). In the case at bar, the plaintiff successfully carried this burden through inter alia the submission of an affidavit from Daniel Englander, a member of the plaintiff lender. Thus, the burden on this motion now shifts to the defendants, requiring them to show that there is an issue of fact which must be tried (see, Alvarez v. Prosp ect Hospital, supra), or to demonstrate the exi tence of a d fense warranting the denial of summary judgment (see, 2 2 of 4 [*FILED: 3] QUEENS COUNTY CLERK 11/29/2021 03:38 PM NYSCEF DOC. NO. 50 INDEX NO. 723825/2020 RECEIVED NYSCEF: 11/29/2021 Plantamura v. Penske Truck Leasing, Inc. 246 AD2d 347 [1998] or the need for disclosure (See , CPLR §3212[f] ; Denkensohn v. Davenport, 130 AD2d 860 [1987]). The defendants failed to carry this burden. First, there is no merit in the defendants' contention that ADRC is a necessary party to this lawsuit. Only defendant Sunshine School signed the Loan Agreement and the ote as borrower and, even if ADRC had co-signed the Note, the defendant borrower, as a co-maker of the ote sued upon would have joint and several liability and, therefore, could be sued separately (See, Kirshtein v. Balio, 199 AD2d 777 [1993]). Second, there is also no merit in the defendants ' argument that the plaintiff lender failed to give a required "predicate notice" and to allow time to cure befor accelerating the outstanding principal balance and beginning this lawsuit. While section 7(c) Miscellaneous of the Loan Agreement provides that "Any notice, demand or request hereunder shall be in writing,' the loan documents do not specifically impose upon the plaintiff lender obligations to send a predicate notice of default or to allow a cure period. Moreover the ote specifically states the defendant borrower ' waive[ s] presentment, demand for payment protest and notice of dishonor. ' Third, the defendants did not adequately demonstrate a need for disclosure regarding the sum that they owe the plaintiff. Supported by a business record attached as Exhibit 2, the Affidavit of David Englander specifically alleges the payments missed by the defendant borrower, and the defendants failed to submit documentary or other evidence sufficient to show that there is a genuine issue of fact with regard to missed or uncredited payments requiring disclosure. The plaintiff has demonstrated that it is entitled to summary judgment in regard to the amount owed for principal and interest. The Court notes that CPLR §5001 (a) permits a creditor to recover prejudgment interest on unpaid interest and principal payments awarded from the date each payment became due under the terms of the Promissory ote to the date liability is established (See, Spodekv. Park Prop. Dev. Assocs. 96 NY2d 577, 581 [2001]). In the case at bar, the Loan Agreement between the parties provides a default interest rate of 12% per annum from the date of an event of default. In regard to attorney' s fees attorney ' s fees may be recovered where authorized by statute court rule or written agreement of the parties ( See, Owens v. Tompkins Bank ofCastile , 170 AD3d 1683 [2019]). In the case at bar the Loan Agreement, ote, and Guaranty each give the lender the right to recover attorneys ' fees incurred in connection with the enforcement of their terms. In evaluating what constitutes a reasonable attorney's fee , factors to be considered include the time and labor expended, the difficulty of the questions involved and the required skill to handle the problems presented the attorney' experience, ability and reputation, the amount involved, the customary fee charged for such services, and the results obtained ' (In re Szkambara, 53 AD3d 502, 502-03 [2008]; In re Sucheron , 95 AD3d 892 [2012]). Here, while the plaintiffs attorney requests a hearing on the amount of recoverable attorney s fees , he did not demand a specific amount for attorney ' s fees discuss the factors relevant to attorney ' s fees or set forth his hourly rate charged for his legal services. his Court 3 3 of 4 [*FILED: 4] QUEENS COUNTY CLERK 11/29/2021 03:38 PM NYSCEF DOC. NO. 50 INDEX NO. 723825/2020 RECEIVED NYSCEF: 11/29/2021 cannot determine if a hearing is even necessary. This branch of the motion is denied without prejudice to renewal. Dated: FILED 11/29/2021 J.S .C. COUNTY CLERK QUEENS COUNTY 4 4 of 4

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