SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------------------------------------------x EMA PHARMACY CORP., Index No. Plaintiff, -against- SHMUEL Y. WALDMAN, Defendants. -----------------------------------------------------------------x MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF S MOTION FOR SUMMARY JUDGEMENT IN LIEU OF COMPLAINT PURSUANT TO CPLR 3213 1 of 8
TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES.......ii PRELIMINARY STATEMENT.....1 FACTUAL BACKGROUND......1 ARGUMENT.....1 I. Plaintiff Is Entitled To Summary Judgment as a Matter of Law..1 II. Plaintiff is Entitled to Expenses of Collection, Including Attorney s Fees..3 CONCLUSION.4 i 2 of 8
CASES TABLE OF AUTHORITIES Pages(s) Bankers Fed. Sav. Bank v. Off W. Broadway Developers, 224 A.D.2d 376, 638 N.Y.S.2d 72 (1st Dept. 1996)... 4 Boland v. Indah Kiat Finance, 291 A.D.2d 342, 739 N.Y.S.2d 122 (1st Dept. 2002)... 2 Borg v. Belair Ridge Development Corn, 270 A.D.2d 377, 705 N.Y.S.2d 260 (2d. Dept. 2000)... 4 Cutter Bayview Cleaners, Inc, v. Spotless Shirts, Inc., 57 A.D.3d 708, 870 N.Y.S.2d 395 (2d Dept. 2008)... 2 Davis v. Lanterh, 307 A.D.2d 947, 763 N.Y.S.2d 470 (2d Dept. 2003)... 2 East New York Savings Bank v. Baccaray, 214 A.D.2d 601, 625 N.Y.S.2d 88 (2d Dept. 1995)... 2 Federal Deposit Ins. Corp. v. Jacobs, 185 A.D.2d 913, 587 N.Y.S.2d 978 (2d Dept. 1992)... 3 Inc, v. Waldbaurm, 282 A.D.2d 434, 723 N.Y.S.2d 205 (2d. Dept. 2001)... 1 Kamco Supply Corp. v. Annex Contracting Inc., 261 A.D.2d 363, 689 N.Y.S.2d 189 (2d Dept. 1999)... 3 Maglich v. Saxe, Bacon & Bolan, P.C., 97 A.D.2d 19, 468 N.Y.S.2d 618 (1st Dept. 1983)... 1 Mangiatordi v. Maher, 293 A.D.2d 454, 740 N.Y.S.2d 114 (2d Dept. 2002)... 2 Matas v. Alpargatas S.A.I.C., 274 A.D.2d 327, 711 N.Y.S.2d 178 (1st Dept. 2000)... 2 Matter of Urv., 108 A.D.2d 816, 485 N.Y.S.2d 329 (2d Dept. 1985)... 3 ii 3 of 8
National Bank of Westchester v. Pisanf, 58 A.D.2d 597, 395 N.Y.S.2d 487 (2d Dept. 1977)... 3 Northport Car Wash, Inc, v. Northport Car Care, LLC, 52 A.D.3d 794, 859 N.Y.S.2d 378 (2d Dept. 2008)... 2 Roe v. Smyth, 278 N.Y. 364, 16 N.E.2d 366 (1938)... 3 Silber v. Muschel, 190 A.D.2d 727, 593 N.Y.S.2d 306 (2nd Dept. 1993)... 1 Simoni v. Time-Line, Ltd., 272 A.D.2d 537, 708 N.Y.S.2d 142 (2d Dept. 2000)... 4 SO/Bluestar LLC v. Canarsie Hotel Cora, 33 A.D.3d 986, 825 N.Y.S.2d 80 (2d Dept. 2006)... 3 RULES CPLR 3213... 1, 2 iii 4 of 8
PRELIMINARY STATEMENT This is an action to recover payment from SHMUEL Y. WALDMAN ( Waldman or Defendant ) for all sums due and owing to EMA PHARMACY CORP. ( EMA or Plaintiff ) under a promissory note dated January 12, 2016 (the Note ). Plaintiff respectfully submits this Memorandum of Law in support of its motion for an order granting it summary judgment in lieu of complaint pursuant to N.Y. CPLR 3213. FACTUAL BACKGROUND For a complete recitation of the factual background of this matter, this Court s attention is respectfully referred to the accompanying affidavit of Eily Alkada, CEO of EMA, sworn to on February 8, 2017. ARGUMENT I. Plaintiff Is Entitled To Summary Judgment as a Matter of Law N.Y. CPLR 3213 states, in pertinent part, that [w]hen an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons notice of motion for summary judgment and the supporting papers in lieu of a complaint. CPLR 3213. A plaintiff seeking the accelerated relief provided by N.Y. CPLR 3213 must make a prima facie showing based on the terms of the instrument and a defendant's failure to pay the amounts due thereunder. Maglich v. Saxe, Bacon & Bolan, P.C., 97 A.D.2d 19, 468 N.Y.S.2d 618 (1st Dept. 1983). Once the plaintiff has made such a showing, the defendant must demonstrate the existence of a triable issue of fact in order to defeat the motion. Silber v. Muschel, 190 A.D.2d 727, 593 N.Y.S.2d 306 (2nd Dept. 1993). The purpose of CPLR 3213 is to provide a speedy and effective means of securing a judgment on claims that are presumptively meritorious. J.D. Structures. Inc, v. Waldbaurm, 282 A.D.2d 434, 723 N.Y.S.2d 205 (2d. Dept. 2001). Relief 1 5 of 8
pursuant to CPLR 3213 is available where a right to payment can be ascertained from the face of the document. Boland v. Indah Kiat Finance, 291 A.D.2d 342, 343, 739 N.Y.S.2d 122 (1st Dept. 2002), quoting Matas v. Alpargatas S.A.I.C., 274 A.D.2d 327, 328, 711 N.Y.S.2d 178 (1st Dept. 2000). In this case, Plaintiff seeks to recover payment from Defendant based on his default under the Note, which constitutes an instrument for the payment of money only, and his failure to pay the amounts due and owing thereunder upon Plaintiff s demand for payment. Because the terms of the Note set forth the amount due and the date in which payment was due, Plaintiff s right to payment is ascertainable from the Note. As such, N.Y. CPLR 3213 represents the appropriate and authorized method for securing judgment against Defendant for the amounts due and owing under the Note. A promissory note is an instrument for the payment of money only and, as such, serves as an appropriate basis for proceeding under N.Y. CPLR 3213. Davis v. Lanterh, 307 A.D.2d 947, 763 N.Y.S.2d 470 (2d Dept. 2003); East New York Savings Bank v. Baccaray, 214 A.D.2d 601, 625 N.Y.S.2d 88 (2d Dept. 1995). To establish a prima facie case on a promissory note, a plaintiff must establish the existence of the instrument and the defendant s failure to make payment pursuant to the terms of the instrument. Cutter Bayview Cleaners, Inc, v. Spotless Shirts, Inc., 57 A.D.3d 708, 870 N.Y.S.2d 395 (2d Dept. 2008); Mangiatordi v. Maher, 293 A.D.2d 454, 740 N.Y.S.2d 114 (2d Dept. 2002). Once the plaintiff has met its burden, the defendant must then establish by admissible evidence the existence of a triable issue concerning a bona fide defense. Cutter Bayview Cleaners, Inc, v. Spotless Shirts, Inc., supra; Northport Car Wash, Inc, v. Northport Car Care, LLC, 52 A.D.3d 794, 859 N.Y.S.2d 378 (2d Dept. 2008). Bald, conclusory allegations 2 6 of 8
are insufficient to defeat a motion for summary judgment in lieu of a complaint. Federal Deposit Ins. Corp. v. Jacobs, 185 A.D.2d 913, 587 N.Y.S.2d 978 (2d Dept. 1992). Prior to January 12, 2016, Plaintiff extended credit and financial accommodations to Defendant in the principal amount of $72,475.00, and on January 12, 2016 Defendant executed the Note obligating himself to pay Plaintiff the principle amount of $72,475.00. Full payment of the Note was due on October 31, 2016 ( Due Date ). Prior to the Due Date, Defendant made payments equaling a total of $21,741.41 ( Payments ). Other than the Payments, Defendant has neglected and refused to make any further payments on the Note, which payments are now past due and owing to Plaintiff, despite Plaintiff s demands. Consequently, there is now due and owing to Plaintiff from Defendant the principal sum of $50,733.59.00, plus a penalty fee of $5,000.00 as agreed upon and provided in the Note. II. Plaintiff is Entitled to Expenses of Collection, Including Attorney s Fees Attorneys fees may be awarded pursuant to the terms of a contract only to an extent that is reasonable and warranted for services actually rendered. Kamco Supply Corp. v. Annex Contracting Inc., 261 A.D.2d 363, 689 N.Y.S.2d 189 (2d Dept. 1999). Provisions or stipulations in contracts for payment of attorneys fees in the event it is necessary to resort to aid of counsel for enforcement or collection are valid and enforceable. Roe v. Smyth, 278 N.Y. 364, 16 N.E.2d 366 (1938); National Bank of Westchester v. Pisanf, 58 A.D.2d 597, 395 N.Y.S.2d 487 (2d Dept. 1977). The amount of attorneys fees awarded pursuant to a contractual provision is within the court s sound discretion, based upon such factors as time and labor required. SO/Bluestar LLC v. Canarsie Hotel Cora, 33 A.D.3d 986, 825 N.Y.S.2d 80 (2d Dept. 2006); Matter of Urv., 108 A.D.2d 816, 485 N.Y.S.2d 329 (2d Dept. 1985). Legal fees are awarded on a quantum meruit basis and 3 7 of 8
cannot be determined summarily. Simoni v. Time-Line, Ltd., 272 A.D.2d 537, 708 N.Y.S.2d 142 (2d Dept. 2000); Borg v. Belair Ridge Development Corn, 270 A.D.2d 377, 705 N.Y.S.2d 260 (2d. Dept. 2000). When the court is not provided with sufficient information to make an informed assessment of the value of legal services, a hearing must be held. Bankers Fed. Sav. Bank v. Off W. Broadway Developers, 224 A.D.2d 376, 638 N.Y.S.2d 72 (1st Dept. 1996). In the instant case, the Note provides, among other things, that Defendant agrees to it shall pay to Lender such further amount as will be sufficient to cover the cost and expenses of collection, including, without limitation, reasonable attorney s fee, expenses, and disbursements that may be sustained by the Plaintiff in the collection or enforcement of the Note. Therefore, Plaintiff is entitled to recover from Defendants all of its costs and expenses in enforcing the Note including attorneys fees. CONCLUSION Based on the foregoing, Plaintiffs motion for summary judgment in lieu of complaint should be granted in its entirety, together with costs and disbursements and such other and further relief as this Court deems just and proper. Dated: February 21, 2017 New York, New York SILVERMAN & SARDAR LLP By: /s/ Albert Sardar Albert Sardar, Esq. 2 Rector Street, Suite 1203 New York, New York 10006 Telephone: (212) 321-3190 Attorney for Plaintiff 4 8 of 8