Piccolo v. De Carlo

• Decision Date: 14 October 1982
• Citation: 456 N.Y.S.2d 171,90 A.D.2d 609
• Parties: John A. PICCOLO et al., Appellants, v. Peter De CARLO, Respondent, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 171

456 N.Y.S.2d 171

90 A.D.2d 609

John A. PICCOLO et al., Appellants, v. Peter De CARLO, Respondent, et al., Defendant.

Supreme Court, Appellate Division Third Department.

Oct. 14, 1982.

Harvey & Harvey, Mumford & Kingsley, Albany (David A. Tate, Albany, of counsel) for appellants.

Cooper, Erving & Savage, Albany (Michael A. Kornstein, Albany, of counsel) for respondent.

Before SWEENEY, J.P., and MAIN, MIKOLL, WEISS and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court at Special Term, entered March 2, 1982 in Albany County, which denied plaintiffs' motion for summary judgment.

In their complaint, plaintiffs seek $1,164,500 in money damages for alleged breach of contract for the purchase and sale of four restaurants in the Albany area, and for specific performance of an agreement to deliver certain securities to be held in escrow as collateral security. Plaintiffs have appealed from Special Term's denial of their motion for summary judgment on the ground triable issues of fact existed.

On June 19, 1980, defendant DeCarlo formed 1980 PAF Restaurants Ltd. (PAF) to purchase plaintiffs' shares of stock in four corporations. Pursuant to the purchase contract, PAF gave plaintiffs various promissory notes and guaranteed payment of certain obligations of two of the corporations. An additional agreement executed the same date modified a separate guarantee agreement and provided that DeCarlo would place certain public securities into escrow as collateral. Plaintiffs allege that this agreement was breached by DeCarlo. The complaint seeks specific performance compelling delivery of securities to the extent of $208,000. In his answer and opposing affidavit, DeCarlo alleges triable issues of fact respecting fraudulent inducement, undue influence, and conflict of interest by plaintiffs' attorneys, and further denies the guarantee was personal. He also alleges lack of in personam jurisdiction. Plaintiffs make no claim against defendant Roslyn Weiss who has been joined as a necessary party. It is uncontroverted that DeCarlo never delivered his shares of stock in a listed corporation as security despite demand therefor, and that at least $607,500 remains unpaid on the purchase price. ^* PAF's Chapter 11 proceeding in Bankruptcy Court was dismissed and it is no longer in business, having been adjudicated bankrupt under Chapter 7. Upon oral argument, plaintiffs concede that the only relief they seek is judgment against DeCarlo for $208,000.

Since the drastic relief of summary judgment is the equivalent of a trial (Falk v. Goodman, 7 N.Y.2d 87, 195 N.Y.S.2d 645, 163 N.E.2d 871), before the motion may be granted, it must appear clearly that no triable issue of fact exists (Glick & Dolleck v. Tri-Pac Export Corp., 22 N.Y.2d 439, 293 N.Y.S.2d 93, 239 N.E.2d 725). All that is required to defeat the motion is the identification of existing triable issues, rather than any determination upon such issues (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498, 144 N.E.2d 387). Initially, a movant has the burden to set forth evidentiary facts sufficient to entitle that party to judgment as a matter of law, whereupon the burden is shifted to the opposing party to come forward with proof, again in evidentiary form, to show the existence of genuine triable issues of fact (Greenberg v. Manlon Realty, 43 A.D.2d 968, 352 N.Y.S.2d 903; Iandoli v. Lange, 35 A.D.2d 793, 315 N.Y.S.2d 752). Plaintiffs contend that the opposing affidavits fail to meet the standard of sufficiency required to defeat their motion for summary judgment. To defeat summary judgment one must lay bare in evidentiary form the evidence on which he relies (Marine Midland Bank v. Hall, 74 A.D.2d 729, 425 N.Y.S.2d 693). "Bald conclusory assertions, even if believable, are not enough to [defeat summary judgment]" (Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 342, 357 N.Y.S.2d 478, 313...