Financial Pacific Leasing, LLC v. Funding Associates, Inc., 2009 NY Slip Op 30747(U) (N.Y. Sup. Ct. 3/27/2009)

• Decision Date: 27 March 2009
• Docket Number: Motion Sequence No. 005, 006.,No. 19259-05.,19259-05.
• Citation: Financial Pacific Leasing, LLC v. Funding Associates, Inc., 2009 NY Slip Op 30747(U) (N.Y. Sup. Ct. 3/27/2009), 2009 NY Slip Op 30747, Motion Sequence No. 005, 006., No. 19259-05. (N.Y. Sup. Ct. Mar 27, 2009)
• Parties: FINANCIAL PACIFIC LEASING, LLC, Plaintiff, v. FUNDING ASSOCIATES, INC., JOHN LUPO and SANDY LUPO, Individually, Defendants.
• Court: New York Supreme Court

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2009 NY Slip Op 30747(U)

FINANCIAL PACIFIC LEASING, LLC, Plaintiff, v.FUNDING ASSOCIATES, INC., JOHN LUPO and SANDY LUPO, Individually, Defendants.

No. 19259-05.

Motion Sequence No. 005, 006.

Supreme Court of the State of New York, Nassau County.

March 27, 2009.

ANTONIO I. BRANDVEEN, Judge.

The plaintiff moves for summary judgment against the defendantSandy Lupo, individually, and dismissing this defendant's answer dated June 5, 2008, on the ground there are no triable issues of fact.Lupo opposes this motion, and cross moves for an award pursuant to CPLR 8303-aand22 NYCRR § 130-1 [c] granting costs and sanctions.The plaintiff opposes this cross motion.The underlying action is predicated upon an alleged breach of a lease agreement dated December 19, 2003, between the plaintiff and another corporation.The action alleges the defendantsJohn Lupo and Sandy Lupo, executed personal guarantees in favor of the plaintiff for all payments due to the plaintiff under that lease agreement.This Court has carefully reviewed and considered all of the parties' papers submitted with respect to these motions.

Under CPLR 3212(b), a motion for summary judgment"shall show that there is no defense to the cause of action or that the cause of action or defense has no merit.The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.""The motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact."Summary judgment is a drastic remedy that is awarded only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hosp.,68 N.Y.2d 320, 325;Andre v. Pomeroy,35 N.Y.2d 361).Summary judgment is the procedural equivalent of a trial (Museums at Stony Brook v. Village of Patchogue Fire Dept.,146 A.D. 2d 572).Thus the burden falls upon the moving party to demonstrate that, on the facts, it is entitled to judgment as a matter of law (see, Whelen v. G.T.E. Sylvania Inc.,182 A.D. 2d 446).The court's role is issue finding rather than issue determination (see, e.g., Sillman v. Twentieth Century-Fox Film Corp.,3 N.Y.2d 395;Gervasio v. DiNapoli,134 A.D.2d 235, 236;Assing v. United Rubber Supply Co.,126 A.D.2d 590).Nevertheless, "the court must evaluate whether the alleged factual issues presented are genuine or unsubstantiated"(Gervasio v. Di Napoli, supra,134 A.D.2d at 236, quoting fromAssing v. United Rubber Supply Co., supra;see, Columbus Trust Co. v. Campolo,110 A.D.2d 616, affd66 N.Y.2d 701).If the issue claimed to exist is not genuine, and, therefore, there is nothing to be resolved at the trial, the case should be summarily decided (see, Andre v. Pomeroy,35 N.Y.2d at 364;Assing v. United Rubber Supply Co., supra).

A contract should be read as a whole to determine its purpose and intent (seeW.W.W. Assoc. v Giancontieri,77 NY2d 157, 162[1990])."[I]n searching for the probable intent of the parties, lest form swallow substance, our goal must be to accord the words of the contract their `fair and reasonable meaning'"(Sutton v East Riv. Sav. Bank,55 NY2d 550, 555[1982], quotingHeller v Pope,250 NY 132, 135[1928]).

Cave v. Kollar,2 A.D.3d 386, 387, 767 N.Y.S.2d 856(2^nd Dept., 2003).

The exception occurs, as a matter of law, when the nature or contents of a lease agreement are intentionally misrepresented to a person, such as the defendant here, and the defendant signs relying on that misrepresentation, and under mistake as to the document's true nature or contents.

CPLR 4536 provides: "Comparison of a disputed writing with any writing proved to the satisfaction of the court to be the handwriting of the person claimed to have made the disputed writing shall be permitted.""Once a court determines the genuineness of a handwriting specimen, an expert or a jury may compare a disputed writing to the known specimen, even in the absence of an expert opinion (see, People v. Molineux,168 N.Y. 264, 330, 61 N.E. 286;People v. Hunter,34 N.Y.2d 432, 435-436, 358 N.Y.S.2d 360, 315 N.E.2d 436)"(People v. Fields,287 A.D.2d 577, 578, 731 N.Y.S.2d 492[2^nd Dept., 2001]).Moreover, "a party will not be excused from his failure to read and understand the contents of a release.A party who signs a document without any valid excuse for having failed to read it is conclusively bound by its terms."(Shklovskiy v. Khan,273 A.D.2d 371, 372, 709 N.Y.S.2d 208[2^nd Dept., 2000]).The plaintiff has provided evidence the defendantsJohn Lupo, as president of the defendant corporation and Sandy Lupo, as secretary of the defendant corporation executed, in writing personal guarantees in favor of the plaintiff for all payments due to the plaintiff under the subject lease agreement.The plaintiff has presented evidence showing payment has not been made as agreed.The plaintiff establishes its prima facie entitlement to judgment as a matter of law by presenting such evidence (North Fork Bank v. ABC Merchant Services, Inc.,49 A.D.3d 701, 853 N.Y.S.2d 633[2^nd Dept., 2008]).

In opposition, the defendantSandy Lupo raises a triable issue of fact.The commentary states:

When proof of handwriting is made on the basis of comparison, CPLR 4536 requires that the genuineness of the specimen first be established to the court's satisfaction.The authenticity of the specimen, therefore, is not a question that should be submitted to the jury.The jury's task should be simply to decide the authenticity of the disputed document on the basis of comparison between it and the specimen whose genuineness has already been determined by the court Alexander, Practice Commentaries, McKinney's CPLR Rule 4536, Book 7B

The defendant submits an affidavit dated December 23, 2008, together with an affirmation dated December 23, 2008, by defense counsel, which deny the allegations of the plaintiff, and claims the signature on the guarantee is a forgery.The defendant stated, in an affidavit dated May 8, 2006, "I never signed as a personal guarantee for an [sic] such lease."Yet, the defendant stated, in the verified answer dated June 5, 2006, "the alleged contract was fraudently [sic] executed as myself & John Lupo were told to sign in blank forms."The defendant stated, in an affidavit dated August 15, 2008, "the alleged Guarantee, proffered as proof by Plaintiff, was never executed by me and the signature it bears is a forgery."These sworn statements by the defendant are the defendant's signature.

In support of their motion, the plaintiffs demonstrated a prima facie entitlement to judgment as a matter of law by proffering sworn, express denials that the signatures on the withdrawal slip and bank check were genuine, and sworn, express denials that they either closed or received the moneys in the subject account.However, in opposition and in support of its cross motion, the defendant raised a triable issue of fact as to whether the signatures were genuine (seeCPLR 4536;People v. Fields,287 A.D.2d 577, 731 N.Y.S.2d 492;Seoulbank, N. Y. Agency v. D & J Export & Import Corp.,270 A.D.2d 193, 707 N.Y.S.2d 12;Dyckman v. Barrett,187 A.D.2d 553, 590 N.Y.S.2d 224).Thus, neither party was entitled to summary judgment on the issue of the genuineness of the disputed signatures and underlying transaction.

James v. Albank,307 A.D.2d 1024, 1025, 763 N.Y.S.2d 838[2^nd Dept, 2003])."The parties' conflicting affidavits presented credibility issues which should not be resolved on a motion for summary judgment(see, Capelin Assoc. v. Globe Mfg. Corp.,34 N.Y.2d 338, 341, 357 N.Y.S.2d 478, 313 N.E.2d 776;Dyckman v. Barrett,187 A.D.2d 553, 590 N.Y.S.2d 224)."(Heller v. Hicks Nurseries, Inc.,198 A.D.2d 330, 331, 605 N.Y.S.2d 888[2^nd Dept, 1993])."The role of the court in deciding a motion for summary judgment is not to resolve issues of fact or to determine matters of credibility, but simply to determine whether such issues of fact requiring a trial exist.Dyckman v. Barrett,187 A.D.2d 553, 590 N.Y.S.2d 224(2d Dept.1992);Barr v. County of Albany,50 NY2d 247, 254(1980);James v. Albank,307 A.D.2d 1024, 763 N.Y.S.2d 838(2d Dept.2003);Heller v. Hicks Nurseries, Inc.,198 AD2d 330(2d Dept.1993)"(Sarro v. Nassau,2008 WL 2724624), 2008 N.Y. Slip Op. 31900[Sup Ct, Nassau Co, 2008]).Thus, the Court finds here there is an issue of fact which needs resolution by the trier of fact.

The defense contends the plaintiff cannot demonstrate any good faith argument for bringing this motion when the pleadings and motions submitted from the inception of the litigation until the current time show this motion lacks any reasonable basis.The defense claims, as a result of this frivolous motion practice, the defendant incurred expenses.

22 NYCRR § 130-1.1 (a) provides:

The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous...