Simoni v. Time-Line, Ltd.
| Decision Date | 22 May 2000 |
| Citation | 272 A.D.2d 537,708 N.Y.S.2d 142 |
| Parties | CARL SIMONI, Appellant,<BR>v.<BR>TIME-LINE, LTD., et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Friedmann, J. P., McGinity, Luciano and Feuerstein, JJ., concur.
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Suffolk County, for entry of a judgment in the principal sum of $60,270.33, plus interest, and for a hearing with respect to the amount of attorneys' fees to be awarded.
The plaintiff seeks payment on six promissory notes in the total principal sum of $60,270.33, plus interest and attorneys' fees. In support of his motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the plaintiff made a prima facie showing that he was entitled to judgment as a matter of law by proving the execution of the six notes and the defendants' failure to make payments thereon (see, J.L.B. Equities v Mind Over Money, 261 AD2d 510; Elmsford-Interstate Bldg. Material Corp. v Elm Ridge Mgt., 243 AD2d 675). Thus, the burden shifted to the defendants to establish, by admissible evidence, the existence of a triable issue of fact in order to avoid enforcement of the notes (see, J.L.B. Equities v Mind Over Money, supra; Bennell Hanover Assocs. v Neilson, 215 AD2d 710, 711).
The affidavit of the defendant Al Anish, submitted in opposition to the plaintiff's motion, which did not deny the validity of the subject notes or the defendants' default, and which contained a conclusory assertion that partial payments had been made toward the outstanding debts, was insufficient to defeat the plaintiff's motion (see, Elmsford-Interstate Bldg. Material Corp. v Elm Ridge Mgt., supra; Naugatuck Sav. Bank v Gross, 214 AD2d 549). Moreover, in reply to Anish's conclusory assertion regarding partial payment, the plaintiff established that these payments had been made on a pre-existing debt which predated and was wholly unrelated to the six notes which are the subject of the instant action.
There is no merit to the defendants' claim that the first of the six promissory notes was usurious. Except for a limited exception not applicable in the instant case, the defense of usury is not available to a corporate defendant (see, General Obligations Law § 5-521; Schneider v Phelps, 41 NY2d 238, 242; Essex v Newman, 237 AD2d 486; Stanley Weisz, P. C. Retirement Plan v NCHD Assocs., 237 AD2d 276), and is not available to an individual guarantor of the corporate obligation (see, Schneider v Phelps, s...
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Griffon v. 11 East 36th, LLC
...an appropriate judgment ( see Premium Assignment Corp. v. Utopia Home Care, Inc., 58 A.D.3d 709, 871 N.Y.S.2d 724; Simoni v. Time–Line, Ltd., 272 A.D.2d 537, 708 N.Y.S.2d 142; Borg v. Belair Ridge Dev. Corp., 270 A.D.2d 377, 705 N.Y.S.2d 260; Afco Credit Corp. v. Boropark Twelfth Ave. Realt......
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Leviton v. East Atl. Prop., LLC, 2009 NY Slip Op 33182(U) (N.Y. Sup. Ct. 12/21/2009), 003430-09.
...816 (2d Dept. 1985). Legal fees are awarded on a quantum meruit basis and cannot be determined summarily. See Simoni v. Time-Line, Ltd., 272 A.D. 2d 537 (2d Dept. 2000); Borg v. Belair Ridge Development Corp., 270 A.D. 2d 377 (2d Dept. 2000). When the court is not provided with sufficient i......
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Seedansingh v. Ragnanan, 2007 NY Slip Op 33763(U) (N.Y. Sup. Ct. 11/14/2007), 8555-06/
...disbursements in regard to its action on the note. The amount due will have to be established at a hearing. See, Simoni v. Time-Line, Ltd., 272 A.D.2d 537 (2nd Dept. 2000); and Borg v. Belair Ridge Development Corp., 270 A.D.2d 377 (2nd Dept. 2000). Thus, the full amount of the judgment on ......
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JP Morgan Chase Bank, Nat'l Ass'n v. Butler
...for the unpaid principal balance of the note (accord Rachmany v. Regev, 115 A.D.3d 840, 841, 982 N.Y.S.2d 352 ; Simoni v. Time–Line, Ltd., 272 A.D.2d 537, 538, 708 N.Y.S.2d 142 ). In this regard, the plaintiff presented the subject mortgage, the unpaid note, evidence of Butler's default, an......