Opinion
22447-07.
Decided September 23, 2008.
Todd Levi, LLP, New York, New York, COUNSEL FOR PLAINTIFF.
Milton Shaiman, Esq., Commack, New York, COUNSEL FOR DEFENDANTS.
Plaintiff Avon Electrical Supply, a division of Wesco Distribution, Inc. moves for: (1) summary judgment on its first through fifth causes of action; (2) severance of the sixth through ninth causes of action; and (3) dismissal of the Defendants' affirmative defense.
BACKGROUND
At some point prior to March 2005, Defendants H. J. Melichar Sons, Inc. and R. H. Melichar ("Melichar Companies"), contacted the Plaintiff Avon Electrical Supply, a division of Wesco Distribution, Inc ("Avon") and made known its intent to purchase electrical supplies from Avon. (Cmplt. ¶¶ 6-8).
Before making their purchases, the Melichar Companies through their principal, Defendant Richard H. Melichar ("Richard"), executed a credit application, a document entitled "Terms and Conditions of Sale," and a "continuing" guarantee, by which Richard personally guaranteed and agreed to assume liability for "all bills rendered or to be rendered which are not paid promptly by the purchasing corporation * * * when due." (Continuing Guarantee, Moskowitz Aff., Exh. A).
Pursuant to the "Terms and Conditions of Sale," the Melichar Companies agreed to pay Avon for any materials supplied within 30 days of delivery and further agreed that if payment were not timely remitted, Richard would then pay a service charge on the late amounts due and owing. Additionally, the conditions of sale provide that, "in the event that an attorney is used to effect collection" outstanding funds due, then Avon would be entitled to recover "33 1/3% of the principal as attorney's fees" (Moving papers, Exh. A, Terms and Conditions ¶ 14).
Avon alleges that it later delivered electrical supplies to the Melichar Companies but they failed to pay for all of the materials received.
In December 2007, Avon commenced this action, setting forth causes of action for breach of contract, quantum meruit, unjust enrichment, counsel fees and breach of the personal guarantee executed by Richard.
The Melichar Defendants have jointly answered, denied the material allegations of the complaint and set forth a single affirmative defense which avers in sum that: (1) Avon, in fact, owes the Defendants $33,000.00; (2) Richard is liable under the personal guarantee for, at most, $10,000.00; and (3) the sales relied upon by Avon in calculating the sums owed "are much less that the amount[s] requested * * *" (Ans. ¶ 13-15).
Avon now moves for summary judgment on its claims, while the Melichar Defendants have filed a purported notice of cross-motion. Notably, the notice of motion itself does not formally request affirmative relief, but instead, demands only that the Court deny the Avon motion.
However, in a two page affidavit submitted as the sole attachment to the "cross-motion", Richard alleges, among other things, that Avon supposedly sent defamatory letters to his customers the content of which is not meaningfully described and that as a consequence, "I therefore want $500,000.00 * * *" (Melichar Aff., ¶¶ 6-7). Significantly, there is no reference to any defamatory utterances or a claim based thereon anywhere in the Defendants' answer.
The Defendants further claim that Avon has not produced proof that the goods at issue were actually received; that Avon failed to offer credits for goods which were allegedly never received; and that, in general, the Defendants "dispute the amounts" which Avon claims it is entitled to recover.
DISCUSSION
Upon the papers presented, Avon has established its prima facie entitlement to summary judgment on its "goods sold and delivered" claims by submitting, inter alia, account statements, delivery receipts, invoices, contract documents and the affidavit of its Division president who has described the transactions and the Defendants' receipt of the goods. Castle Oil Corp. v. Bokhari , 52 AD3d 762 (2nd Dept. 2008); Boise Cascade Office Products Corp. v. Gilman Ciocia, Inc. , 30 AD3d 454, 455 (2nd Dept. 2006); Becker v. Shore Drugs, 296 AD2d 515 (2nd Dept. 2002); Neuman Distribs. v. Falak Pharmacy Corp., 289 AD2d 310 (2nd Dept. 2001); Drug Guild Distribs. v. 3-9 Drugs, 277 AD2d 197, 198 (2nd Dept. 2000); and Riverhead Building Supply Corp. v. Regine Starr, Inc., 249 AD2d 532 (2nd Dept. 1998).
Similarly, on its personal guarantee claim, Avon has demonstrated the existence of the underlying obligation, the guarantee and the failure of the prime obligor to make the payments required. Verela v. Citrus Lake Development, Inc. , 53 AD3d 574 (2nd Dept. 2008); and Telephone Dynamics Corp. v. Morrisey, 8 Misc 3d 1009(A), 2005 WL 1552832 at *2 (Sup.Ct. Nassau Co. 2005). See gen'lly, North Fork Bank Corp. v. Graphic Forms Assoc., Inc. , 36 AD3d 676 (2nd Dept. 2007); Famolaro v. Crest Offset, Inc. , 24 AD3d 604 (2nd Dept. 2005); E.D.S. Security System, Inc. v. Allyn, 262 AD2d 351 (2nd Dept. 1999).
In response, the Defendants have failed to raise a triable issue of fact with respect to the defenses and opposing claims they have made. Boise Cascade Office Products Corp. v. Gilman Ciocia, Inc., supra at 454, 455; JPMorgan Chase Bank v. Gamut-Mitchell, Inc. , 27 AD3d 622 (2nd Dept. 2006); and Neuman Distribs. v. Jacobi Med. Ctr., supra.
Specifically, in his affidavit, Richard merely asserts in conclusory terms, that he "disputes" the Plaintiff's claims; that credit was not given for unstated items allegedly never delivered; and that the bills submitted by the Plaintiff are confusing. These claims are so vague and inconclusive as to amount to no opposition at all. Castle Oil Corp. v. Bokhari, supra at 762; Boise Cascade Office Products Corp. v. Gilman Ciocia, Inc., supra at 454-455; Drug Guild Distribs. v. 3-9 Drugs, supra; and Riverhead Building Supply Corp. v. Regine Starr, Inc., supra. Nor have any supporting documents been annexed to the Defendants' submissions which render the factual claims made comprehensible to the reader. Neuman Distribs. v. Falak Pharmacy Corp., supra; and Grimm Bldg. Material Co., Inc. v. Russ Freeman Excavating, Inc., 194 AD2d 857, 858 (3rd Dept. 1993).
Where, as here, the movant's papers make out a prima facie basis for the grant of summary judgment, "[g]eneral, conclusory allegations which contain no specific factual references cannot defeat a motion for summary judgment * * *'." Marine Midland Bank, N.A. v. Dino Artie's Automatic Transmission Co., 168 AD2d 610, 611 (2nd Dept. 1990), quoting from Bank of New York v. Progressive Phone Systems, 71 AD2d 1010, 1011 (2nd Dept. 1979). Similarly, "averments merely stating conclusions, of fact or of law, are insufficient' to defeat summary judgment'." Banco Popular North America v. Victory Taxi Mgt., Inc., 1 NY3d 381, 383 (2004), quoting from Mallad Constr. Corp. v. County Fed. Sav. Loan Assn., 32 NY2d 285 290 (1973).
No less vague are the assertions raised by the Defendants' in opposition to Avon's claims based on the continuing, personal guarantee executed by Richard (See, Cmplt. ¶¶ 31-34).
Specifically, the Defendants' opposition consists of the obscure assertion that the guarantees "are not guarantees of payment as they [ sic] [the Plaintiff] never told Mr. Melichar that they were" (Melichar Aff. ¶ 1). Verela v. Citrus Lake Development, Inc., supra. The Defendants' opposition then adds a final, cryptic statement to the effect that the guarantees "should be the figures on the credit line requested" an apparent reference to the sums of $1,000.00 and $10,000, which were inserted in spaces requesting that the applicant fill in a proposed, monthly credit line amount (Pltff's Exh., A, Application for Commercial Credit p. 1).
A review of the guarantee confirms that there is no relevant monetary limit imposed with respect to the guarantor's potential liability. The monthly credit amount figure has no relevance to the scope of the personal guarantee and no analysis has been provided by the Defendants which establishes otherwise. See, U.S. Trust Co. of New York v. Securities Planners, 238 AD2d 114 (1st Dept. 1997); and Scarsdale Natl. Bank Trust Co. v. S.E.W. Productions, Inc., 151 AD2d 657, 658 (2nd Dept. 1989). To the contrary, since "the language of the instrument of guarantee expressly and unambiguously creates an unconditional guarantee and contains no limiting provisions," the guarantor is precluded from claiming that * * [he] intended the instrument to have only limited applicability. Id. at 658.
Similarly, the vaguely framed affirmative defense to the effect that Avon owes the Defendants $33,000.00 has been advanced without supporting, documentary evidence. Nor has Richard provided factual analysis or discussion which in any sense particularizes or identifies the precise evidentiary basis for this claim. It is settled that "[d]efenses which merely plead conclusions of law without supporting facts are insufficient and should be stricken. See, Bruno v. Sant'elia, 52 AD3d 556 (2nd Dept. 2008); Petracca v. Petracca, 305 AD2d 566 (2nd Dept. 2003); Bentivegna v. Meenan Oil Co., 126 AD2d 506, 508 (2nd Dept. 1987); and Staten Island-Arlington, Inc. v. Wilpon, 251 AD2d 650 (2nd Dept. 1998).
Lastly, that branch of Avon's motion which is for an award of contractually based counsel fees must be set down for a hearing to determine whether the fees sought are reasonable. Best Bldg. Supply Lumber Corp. v. Mastercraft Homes Renovations , 39 AD3d 788, 790 (2nd Dept. 2007); and TPZ Corp. v. Winant Place Assoc., 308 AD2d 577, 578 (2nd Dept. 2003). See gen'lly, Industrial Equipment Credit Corp. v. Green, 62 NY2d 903, 906 (1984); and Matter of First Natl. Bank of E. Islip v. Brower, 42 NY2d 471, 474 (1977).
"An award of attorneys' fees pursuant to such a contractual provision may only be enforced to the extent that the amount is reasonable and warranted for the services actually rendered" a determination which can be definitively made on the time sheet records and affirmations submitted here. CIT Group/Equipment Financing, Inc. v. Riddle, 31 AD3d 477, 478 (2nd Dept. 2006); and Kamco Supply Corp. v. Annex Contracting Inc., 261 AD2d 363 (2nd Dept. 1999). See also, Key Equipment Finance, Inc. v. South Shore Imaging, Inc. , 39 AD3d 595 , 597 (2nd Dept. 2007); NYCTL 1998-1 Trust v. Oneg Shabbos, Inc. , 37 AD3d 789 , 791 (2nd Dept. 2007); SO/Bluestar, LLC v. Canarsie Hotel Corp. , 33 AD3d 986 , 987 (2nd Dept. 2006).
Here, the time records submitted lack sufficient clarity to determine the reasonableness of the counsel fee sought. Thus, a hearing must be held.
Accordingly, it is,
ORDERED that the motion for summary judgment by the Plaintiff Avon Electrical Supply, a division of Wesco Distribution, Inc., is granted with respect to the first, second and fourth causes of action as against H. J. Melichar Sons, Inc., H. J. Melichar Sons, Inc., R. H. Melichar and Richard H. Melichar; and it is further,
ORDERED that Defendants' affirmative defense is hereby stricken and dismissed, and the Plaintiff's sixth through and ninth causes of action are hereby severed and continued; and it is further, ORDERED that the matter shall be set down for a hearing with respect to that branch of the Plaintiff's motion which is for the recovery of reasonable counsel fees; and it is further,
ORDERED that the cross-motion by the Defendants H. J. Melichar Sons, Inc., R. H. Melichar Electrical Contractors, Inc., and Richard H. Melichar, is denied; and it is further,
ORDERED, that counsel for the parties shall appear for a status conference with regard to the severed causes of action and to schedule a hearing on counsel fees on October 17, 2008 at 9:30 a.m.
This constitutes the decision and Order of the Court.