Melrose Credit Union v. Stanttas
| Decision Date | 11 May 2020 |
| Docket Number | Index 711639 2017 |
| Citation | 2020 NY Slip Op 34612 (U) |
| Parties | MELROSE CREDIT UNION, Plaintiff(s) v. ANASTASIA STANTTAS, DEIDRA MELLIS, and KALEVERA TRANS, INC., Motion Seq. No. 2 |
| Court | New York Supreme Court |
Unpublished Opinion
Motion Date September 24, 2019
Present: HONORABLE MARGUERITE A. GRAYS Justice
The following numbered papers EF30-EF43, EF47-EF57, EF58 read on this motion by plaintiff Melrose Credit Union (plaintiff) for summary judgment on the complaint pursuant to CPLR § 3212.
Notice of Motion- Affidavits -Exhibits................................ EF30-EF43
Answering Affidavits - Exhibits EF47-EF57
Upon the foregoing papers it is ordered that this motion is determined as follows:
This is an action sounding in breach of contract arising out of a Balloon Note and Security Agreement given by defendants Anastasia Stanitsas, Deidra Mellis and Kalimera Trans Inc. (collectively referred to as defendants), to plaintiff on or about October 3, 2013, in the original principal amount of $614.400.00. Plaintiff filed a UCC-1 Financing Statement there on with the New York State Secretary of State in connection with the Note and Security Agreement. Plaintiff has alleged that in order to secure their obligations defendants granted plaintiff a lien and security interest in the New York City taxicab medallions numbered 5K63 and 5K64 with rate cards and any vehicles attached thereto, as well as 200 shares of stock in Kalimera Trans Inc. (Kalimera), and that defendants defaulted by failing to make the payments due under the Note and Security Agreement.
In the complaint, plaintiff has alleged a First Cause of Action for breach of contract, a Second Cause of Action for account stated, a Third Cause of Action for account stated, a Fourth Cause of Action for replevin[1] and a Fifth Cause of Action for attorneys' fees, costs and disbursements. In their answer to the complaint, Anastasia Stanitsas (Stanitsas) and Kalimera have alleged six (6) affirmative defenses. In their answer, Deidra Mellis (Mellis) and Kalimera have alleged twenty-four (24) affirmative defenses and seven (7) counterclaims.
Plaintiff has now moved for summary judgment on the complaint. With regard to the First Cause of Action for breach of contract, in order to make a prima facie showing of entitlement to judgment as a matter of law in an action to recover on a promissory note and on a guaranty thereof, such as in this case, plaintiff must establish "'the existence of a promissory note executed by the defendant and the failure of the defendant to pay in accordance with the note's terms'" (Commonwealth Land Tit. Ins. Co. v Prado, 176 A.D.3d 1164, 1165 [2019], quoting Griffon V, LLC v 11 E 36th, LLC, 90 A.D.3d 705, 706 [2011]; see Empire Nat'l Bank v Genard Group, Inc., 170 A.D.3d 959, 960 [2019]; Ahmad v. Luce, 147 A.D.3d 888 [2017]). In general, "'[t]o grant summary judgment 'it must clearly appear that no material and triable issue of fact is presented"' (Matter of New York City Asbestos Litig., 33 N.Y.3d 20, 25 [2019], quoting Glick & Dolleck, Inc. v Tri-Pac Export Corp., 22 N.Y.2d 439, 441 [1968]).
Initially, in opposition to plaintiffs motion, although defendants have argued that the instant motion is premature since relevant disclosure, including depositions, have yet to take place, defendants have "failed to demonstrate that additional discovery may have led to relevant evidence or that the facts essential to oppose the motion were exclusively within the knowledge and control" of plaintiff (Savage v Quinn, 91 A.D.3d 748, 750 [2012]; CPLR §3212[f]; see R.L. v New York City Dept of Educ, 175 A.D.3d 477, 479 [2019]). Therefore, the court will continue on to consider the merits of plaintiff s motion for summary judgment.
The record in this matter includes copies of the pleadings, copies of the Balloon Note and the Security Agreement, both dated October 3, 2013, the UCC-1 Financing Statement, the notice of default dated August 1, 2017 that was sent to defendants, the affidavit of non-party Frank Horvat (Horvat), plaintiffs Chief Operating Officer and General Counsel, Stanitsas' affidavit, and Mellis' affidavit' In bis affidavit, Horvat attested that he was an agent of non-party the National Credit Union Administration Board, which was appointed as conservator for plaintiff on February 10, 2017, which then succeeded all the rights, titles, power, and privileges of plaintiff regarding the Balloon Note at issue. Horvat further attested that he was familiar with plaintiffs practices and procedures, that he reviewed plaintiffs business records regarding defendants' loan, and that defendants defaulted in making the required payments on the Balloon Note.
Upon a careful review of the evidence in the record, in support of its motion, plaintiff has made a prima facie showing of entitlement to summary relief on its cause of action for breach of contract based upon the copies of the pleadings the Balloon Note, the Security Agreement, the UCC-1 Financing Statement and the...
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