Bank v. 11–13–15 Old Fulton D Llc

• Decision Date: 04 October 2011
• Citation: 2011 N.Y. Slip Op. 07004,88 A.D.3d 652,930 N.Y.S.2d 267
• Parties: IMPERIAL CAPITAL BANK, plaintiff/counterclaim defendant-appellant,v.11–13–15 OLD FULTON D, LLC, et al., defendants-respondents,11–13–15 Old Fulton N, LLC, defendant/counterclaim plaintiff-respondent;Robert Yiu, et al., additional counterclaim defendants-appellants.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 652

930 N.Y.S.2d 267

2011 N.Y. Slip Op. 07004

IMPERIAL CAPITAL BANK, plaintiff/counterclaim defendant-appellant,

v.11–13–15 OLD FULTON D, LLC, et al., defendants-respondents,11–13–15 Old Fulton N, LLC, defendant/counterclaim plaintiff-respondent;Robert Yiu, et al., additional counterclaim defendants-appellants.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 4, 2011.

Reed Smith LLP, New York, N.Y. (James M. Andriola of counsel), for plaintiff/counterclaim defendant-appellant and additional counterclaim defendants-appellants.Snitow Kanfer Holtzer & Millus, LLP, New York, N.Y. (Virginia K. Trunkes and Elliot Rosner of counsel), for defendants-respondents 11–13–15 Old Fulton D, LLC, and David Deutsch.Herzfeld & Rubin, P.C., New York, N.Y. (Miriam Skolnik and Herbert Rubin of counsel), for defendant/counterclaim plaintiff-respondent and defendants-respondents Rick Kaminer, also known as Enrique Kaminer, and Aaron Wexler.REINALDO E. RIVERA, J.P., ANITA R. FLORIO, JOHN M. LEVENTHAL, and SHERI S. ROMAN, JJ.

In an action to recover on a promissory note and an individual guaranty, the plaintiff/counterclaim defendant and the additional counterclaim defendants appeal from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated April 23, 2010, as denied that branch of the motion of the plaintiff/counterclaim defendant, made jointly with the additional counterclaim defendants, which was for summary judgment on the complaint, and those branches of their motion which were pursuant to CPLR 3211(a) to dismiss the counterclaims of the defendant 11–13–15 Old Fulton N, LLC.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the motion of the plaintiff/counterclaim defendant and the additional counterclaim defendants which was for summary judgment on the complaint, and substituting therefor a provision granting that branch of the motion, (2) by deleting the provisions thereof denying those branches of the motion which were pursuant to CPLR 3211(a) to dismiss the first counterclaim based on the doctrine of promissory estoppel, and the second counterclaim alleging fraud, to the extent that those counterclaims are premised on conduct occurring before the execution of the promissory note and individual guaranty, and substituting therefor provisions granting those branches of the motion, (3) by deleting the provisions thereof denying those branches of the motion which were pursuant to CPLR 3211(a) to dismiss the third counterclaim alleging breach of contract, and the fifth counterclaim alleging a violation of General Business Law § 349, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable to the plaintiff/counterclaim defendant and the additional counterclaim defendants by the defendants appearing separately and filing separate briefs.

In this action to recover on a promissory note and an individual guaranty thereof, the plaintiff/counterclaim defendant, Imperial Capital Bank (hereinafter Imperial), jointly with the additional counterclaim defendants Robert Yiu, Bach Yen Cheryl Ta, John Drennan, Ruth Nebo, and Brian Benson, moved, inter alia, for summary judgment on the complaint. Imperial demonstrated its prima facie entitlement to judgment as a matter of law by establishing the existence of the note and the guaranty, and the defendants' failure to make payments according to the terms of those documents (hereinafter the loan documents) ( see Signature Bank v. Galit Props., Inc., 80 A.D.3d 689, 915 N.Y.S.2d 138; Gullery v. Imburgio, 74 A.D.3d 1022, 905 N.Y.S.2d 221; Verela v. Citrus Lake Dev., Inc., 53 A.D.3d 574, 575, 862 N.Y.S.2d 96; Northport Car Wash, Inc. v. Northport Car Care, LLC, 52 A.D.3d 794, 859 N.Y.S.2d 378; Governor & Co. of Bank of Ireland v. Dromoland Castle, 212 A.D.2d 759, 624 N.Y.S.2d 855). Since Imperial satisfied its initial burden, “[t]he burden then shifted to the defendant[s] to establish by admissible evidence the existence of a triable issue of fact with respect to a bona fide defense” ( Gullery v. Imburgio, 74 A.D.3d at 1022, 905 N.Y.S.2d 221; see Signature Bank v. Galit Props., Inc., 80 A.D.3d at 689, 915 N.Y.S.2d 138; Verela v. Citrus Lake Dev., Inc., 53 A.D.3d at 575, 862 N.Y.S.2d 96). The defendants failed to do so. Accordingly, the Supreme Court should have granted that branch of Imperial's motion, made jointly with the additional counterclaim defendants, which was for summary judgment on the complaint.

In the same motion, Imperial and the additional counterclaim...