Motion Date: 12/03/04

Transcription

1 C-J I SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. JOSEPH COVELLO Justice UNITED STATES FIDELITY AND GUARANTY COMPANY Plaintiff -against- ARAGONA ENTERPRISES, INC. ARAGONA BROTHERS LEASING CORP. NIJO PRqPERTIES, INC., JOSEPH A. ARAGONA SR., MARY ARAGONA, JOSEPH A. ARAGONA, V CYNTHIA M. ARAGONA and ANGELA ARAGONA, TRIAL/IAS, PART 22 NASSAU COUNTY Index No.: 02415/03 Motion Seq. : 002 Motion Date: 12/03/04 Defendants. The following paper read on this motion: Notice of Motion,.,...,..., Memorandum of Law...,..., S ti pulati on,..,.,...,.,...,.,...,...,.,... Upon the foregoing papers the unopposed motion by plaintiff, United States Fidelity and Guaranty Company, for an Order pursuant to CPLR 3212 granting plaintiff summary judgment against the defendants, Joseph A. Aragona V and Angela Aragona, and for an Order pursuant to CPLR 3215 for an Order granting a judgment on default against defendants, Aragona Enterprises, Inc., Aragona Brothers Leasing Corp. and Nijo Properties Inc., are determined as set forth herein. Plaintiff, United States Fidelity and Guaranty Company (Fidelity), commenced this breach of contract action to recover under Master Surety Agreement entered into between the parties. Plaintiff asserts that in July 1992 in consideration for, and as a pre-condition

2 to, Fidelity s procurement and execution of surety bonds on behalf of the general construction contractor, Joseph Aragona & Sons, Inc., (the Principal), defendants Aragona Enterprises, Inc. (Enterprises), Aragona Brothers Leasing Corp. (Brothers), NIJO Properties Inc. (NIJO), Joseph A. Aragona, V., Cynthia M. Aragona and Angela Aragona (the Indemnitors) executed a Master Surety Agreement (MSA) under which the indemnitors agreed to hold Fidelity harmless for any and all losses incurred as a result of Fidelity having issued bonds on the behalf of the principal. Fidelity executed Performance Bond (Bond) on behalf of the Principal in favor of the New York City Department of Environmental Protection (DEP). In April 1994, the principal filed for bankrptcy protection and the Contract was rejected by the DEP. The DEP then demanded that Fidelity complete performance under its bond obligations. Fidelity then contracted to complete the project. Fidelity completed the work pursuant to the original contract in April The MSA provides that the signatories indemnify Fidelity from and against any and all liabilties, including counsel fees and expenses, that Fidelity may incur as a result of having issued Bonds on the principals' behalf and or in enforcing Fidelity s own rights under the MSA. Plaintiff asserts that to date, in order to complete the project pursuant to its bond obligations, that it has expended the sum of $330, and incurred counsel fees in the sum of $ for a total loss incurred in the sum of $369, under the Bond and to enforce its rights under the MSA. Plaintiff contends that as the defendant! indemnitors have failed to reimburse Fidelity for the losses that they breached the MSA.

3 Plaintiff commenced this action by filng the summons and complaint on February On or about May 27, 2003, defendant Angela Aragona interposed an answer with affirmative defenses; defendants, Joseph and Cynthia Aragona, interposed an answer dated February 17, No answers were interposed on behalf of the other defendants Enterprises, Brothers and NIJO. Plaintiff asserts that the defendant, Cynthia Aragona, plead an affirmative defense of fraud with respect to the Master Surety Agreement, and is not a subject of the motion. Additionally, prior to submission of the motion, plaintiff's attorney entered into a stipulation with counsel for defendant, Angela Aragona, withdrawing the portion of the motion for summary judgment against defendant, Angela Aragona. On the portion of its motion for a default judgment, plaintiff served the three domestic corporate defendants, Enterprises, Brothers and NIJO, on April 2, 2003 pursuant to Business Corporation Law ~306. On or about January 27, 2004 plaintiff mailed an additional copy of the summons to the corporate defendants pursuant to CPLR 3215(g)( 4)(1). Plaintiff asserts that defendants, Enterprises, Brothers and NIJO, are in default as they have not appeared or answered and their time to do so has expired. On the portion of its motion for summary judgment, plaintiff asserts that based upon the contract and supporting documentation it has established that the defendant indemnitors are prima facia liable under the indemnification agreement for all losses it sustained, see Nat' l Union Fire Insurance Co. of Pittsburgh, Pa., v. Robert Christopher Associates, 257 AD2d Plaintiff further asserts that the general

4 denials contained in defendant, Joseph A. Aragona V' s answer are insufficient to defeat its motion for summary judgment. Upon plaintiff's prima facia establishment to summary judgment the burden is on the defendant! indemnitors, to identify relevant and specific factual evidence of a defense sufficient to defeat plaintiff's motion for summary judgment. See, Acstar Ins. Co. v Teton Enterprises, 248 AD2d 654; The Home Indemnity Company v Wachter, 115 AD2d 590; United States Fidelity & Guaranty Company v Green, 34 AD2d 935, Republic Insurance Company v Real Development Co., 161 AD2d 189. Accordingly, plaintiff has established a prima facia entitlement to summary judgment which defendant, Joseph A. Aragona V, has not opposed. Therefore, it is hereby ORDERED, that the portion of plaintiff's motion for summary judgment against defendant, Joseph A. Aragona V, is granted. It is further ORDERED, that the portion of plaintiff's motion for a default judgment against defendants, Aragona Enterprises, Inc., Aragona Brothers Leasing Corp. and Nijo Properties Inc., is granted. It is further ORDERED, that plaintiff, United States Fidelity and Guaranty Company, is granted a judgment against defendants, Joseph A. Aragona V, Aragona Enterprises, Inc. Aragona Brothers Leasing Corp. and Nijo Properties Inc., in the sum of $ , with interest from November 11, 1998 plus costs and disbursements. It is further ORDERED, that the remainder of plaintiff's action against defendants, Cynthia

5 M. Aragona and Angela Aragona, is severed and continued. It is further ORDERED that counsel for plaintiff and defendants, Cynthia M. Aragona and Angela Aragona, are directed to appear on March 10, 2005 at 2:30 pm before Justice Joseph Covello at 100 Supreme Court Drive, Mineola New York 11501, at the PRELIMINARY CONFERENCE DESK, LOWER LEVEL (Not Chambers) for a PRELIMINARY CONFERENCE. No Adjournments. It is further ORDERED that a representative from each parties' office fully familar with the case must appear for the Preliminary Conference. In the event of actual engagement (Court Rule ) you must contact a DCM Case Coordinator prior to the PC date. Service may not answer on DCM matters. No motions are to be made without prior authorization of the DCM Dept. Failure to appear may result in the imposition of sanctions and a case management plan being ordered in your absence. If you have any questions, please call DCM Dept. at (516) , Fax (516) ***NOTE: At the Preliminary Conference, bils of particulars and medical reports must be submitted for review by the court. This constitutes the decision and Order of the Court. Settle judgment on notice Dated: February 14, 2005 C; 'f