Commerce Commercial Leasing, LLC v. PIO Enterprises, Inc.

• Decision Date: 30 November 2010
• Citation: 913 N.Y.S.2d 248,78 A.D.3d 1105
• Parties: COMMERCE COMMERCIAL LEASING, LLC, respondent, v. PIO ENTERPRISES, INC., et al., appellants.
• Court: New York Supreme Court — Appellate Division

913 N.Y.S.2d 248

78 A.D.3d 1105

COMMERCE COMMERCIAL LEASING, LLC, respondent,

v.PIO ENTERPRISES, INC., et al., appellants.

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

Nov. 30, 2010.

Kreinces & Rosenberg, P.C., Westbury, N.Y. (Leonard Kreinces of counsel), for appellants.

Platzer, Swergold, Karlin, Levine, Goldberg & Jaslow, LLP, New York, N.Y. (Steven D. Karlin of counsel), for respondent.

JOSEPH COVELLO, J.P., THOMAS A. DICKERSON, ARIEL E. BELEN, and PLUMMER E. LOTT, JJ.

In an action, inter alia, to recover damages for breach of a lease of equipment, the defendants PIO Enterprises, Inc., and Angelo Ingrassia, also known as Angelo J. Ingrassia, appeal, and the defendant Giuseppe Faraci, also known as Joe Faraci, appeals, from a judgment of the Supreme Court, Nassau County (Brandveen, J.), entered August 18, 2009, which, upon an order of the same court dated June 22, 2009, granting those branches of the plaintiff's motion which were, in effect, for summary judgment on the issues of liability and damages, is in favor of the plaintiff and against them jointly and severally in the total sum of $70,118.83.

ORDERED that the appeal by the defendant Giuseppe Faraci, also known as Joe Faraci, is dismissed, and the judgment and the order insofar as they apply to that defendant are vacated; and it is further,

ORDERED that the judgment is reversed insofar as appealed from by the defendants PIO Enterprises, Inc., and Angelo Ingrassia, also known as Angelo J. Ingrassia, on the law, thatbranch of the plaintiff's motion which was, in effect, for summary judgment on the issue of damages against those defendants is denied, and the order is modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the defendants PIO Enterprises, Inc., and Angelo Ingrassia, also known as Angelo J. Ingrassia.

The plaintiff and the defendant PIO Enterprises, Inc. (hereinafter PIO), entered into a self-described "finance lease" with respect to certain equipment. The defendants Angelo Ingrassia, also known as Angelo J. Ingrassia (hereinafter Ingrassia), and Giuseppe Faraci, also known as JoeFaraci (hereinafter Faraci), personally and unconditionally guaranteed PIO's payment obligations under the lease.

After all of the defendants defaulted on the payments due under the lease, the plaintiff commenced the instant action, inter alia, to recover damages for breach of the lease and to recover on the guarantees. Subsequently, after regaining possession of the equipment, the plaintiff sold the equipment to a third party at an auction. Thereafter, in their amended answer to the complaint, the defendants asserted as an affirmative defense that the sale of the equipment was not effected in a commercially reasonable manner. Ultimately, the plaintiff moved, inter alia, in effect, for summary judgment on the issues of liability and damages. The Supreme Court granted those branches of the plaintiff's motion which were, in effect, for summary judgment on the issues of liability and damages, after which a judgment was entered in favor of the plaintiff and against the defendants, jointly and severally, in the total sum of $70,118.83.

As a preliminary matter, the record reflects that Faraci died before the order was issued and the judgment was entered, and no substitution has since taken place, as required by CPLR 1015. Accordingly, the judgment and the order insofar as they apply to Faraci are nullities and must be vacated, and the appeal purportedly taken by Faraci must be dismissed ( see Golia v. Golia, 286 A.D.2d 368, 369, 728 N.Y.S.2d 708; Bluestein v. City of New York, 280 A.D.2d 506, 506, 720 N.Y.S.2d 378; Kelly v. Methodist Hosp., 276 A.D.2d 672, 673, 714 N.Y.S.2d 524; Cooper v. Volk, 157 A.D.2d 766, 767, 551 N.Y.S.2d 771; Catalfamo v. Flushing Natl. Bank, 124 A.D.2d 624, 625, 507 N.Y.S.2d 885).

The plaintiff demonstrated its prima facie entitlement to judgment as a matter of law on the issue of liability ( see Key Equip. Fin., Inc. v. South Shore Imaging, Inc., 39 A.D.3d 595, 596, 835 N.Y.S.2d 268; Advanta Leasing Servs. v. Laurel Way Spur Petroleum Corp., 11 A.D.3d 571, 571, 782 N.Y.S.2d 677;Terminal Mktg. Co. v. Murphy, 296 A.D.2d 399, 400, 745 N.Y.S.2d 443; see also Ford Motor Credit Co., Inc. v. Racwell Constr., Inc., 24 A.D.3d 500, 501, 808 N.Y.S.2d 294). In opposition, PIO and Ingrassia (hereinafter together the appellants) failed to raise a triable issue of fact as to liability. Instead, their arguments were limited to issues concerning the alleged commercial unreasonableness of the equipment sale, and deficiencies in the notice of disposition of the equipment relative to...