Opinion
2014-01448
11-19-2014
CASTLE RESTORATION & CONSTRUCTION, INC., appellant, v. CASTLE RESTORATION, LLC, et al., respondents.
Forchelli, Curto, Deegan, Schwartz, Mineo & Terrana, LLP, Uniondale, N.Y. (Joseph P. Asselta and David A. Loglisci of counsel), for appellant. Morrone & Associates, P.C., Floral Park, N.Y. (Joseph A. Morrone, Jr., of counsel), for respondents.
Forchelli, Curto, Deegan, Schwartz, Mineo & Terrana, LLP, Uniondale, N.Y. (Joseph P. Asselta and David A. Loglisci of counsel), for appellant.
Morrone & Associates, P.C., Floral Park, N.Y. (Joseph A. Morrone, Jr., of counsel), for respondents.
REINALDO E. RIVERA, J.P., PETER B. SKELOS, THOMAS A. DICKERSON and BETSY BARROS, JJ.
Opinion In an action to recover on a promissory note, commenced by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the plaintiff appeals from an order of the Supreme Court, Nassau County (Bucaria, J.), entered November 14, 2013, which denied its motion for summary judgment in lieu of complaint.
ORDERED that the order is reversed, on the law, with costs, and the motion for summary judgment in lieu of complaint is granted.
The plaintiff made a prima facie showing of its entitlement to judgment as a matter of law by submitting the promissory note and proof of the defendants' failure to make payments on the note according to its terms (see Banco Popular N. Am. v. Victory
Taxi Mgt., 1 N.Y.3d 381, 383, 774 N.Y.S.2d 480, 806 N.E.2d 488 ; Rachmany v. Regev, 115 A.D.3d 840, 841, 982 N.Y.S.2d 352 ; Quadrant Mgt. Inc. v. Hecker, 102 A.D.3d 410, 410, 957 N.Y.S.2d 697 ).
In opposition, the defendants failed to raise a triable issue of fact (see Banco Popular N. Am. v. Victory Taxi Mgt., 1 N.Y.3d at 383, 774 N.Y.S.2d 480, 806 N.E.2d 488 ; Rachmany v. Regev, 115 A.D.3d at 841, 982 N.Y.S.2d 352 ; Cutter Bayview Cleaners, Inc. v. Spotless Shirts, Inc., 57 A.D.3d 708, 709–710, 870 N.Y.S.2d 395 ). The defendants contend that they were not delinquent on the note because the parties entered into a subsequent oral construction management agreement, pursuant to which the defendants were to provide the plaintiff with labor and materials for additional construction projects, and the value of the labor and materials were to offset the defendants' obligation under the promissory note. However, the defendants' contention that the plaintiff and its president breached their contractual obligations under the alleged oral construction management agreement by refusing to offset the value of the labor and materials is not a defense to the plaintiff's motion. “ ‘[T]he general rule is that the breach of a related contract cannot defeat a motion for summary judgment on an instrument for money only unless it can be shown that the contract and the instrument are “intertwined” and that the defenses alleged to exist create material issues of triable fact’ ” (New York Community Bank v. Fessler, 88 A.D.3d 667, 668, 930 N.Y.S.2d 601, quoting Mlcoch v. Smith, 173 A.D.2d 443, 444, 570 N.Y.S.2d 70 ). Here, the defendants failed to demonstrate that the alleged oral construction management agreement was “inextricably intertwined” with the promissory note (New York Community Bank v. Fessler, 88 A.D.3d at 668, 930 N.Y.S.2d 601 ; see Quadrant Mgt. Inc. v. Hecker, 102 A.D.3d at 411, 957 N.Y.S.2d 697 ; Nordea Bank Finland PLC v. Holten, 84 A.D.3d 589, 590, 923 N.Y.S.2d 464 ; Stevens v. Phlo Corp., 288 A.D.2d 56, 56, 733 N.Y.S.2d 11 ). Additionally, the defendants' allegations of fraud are not set forth with specificity and are supported by mere conclusory allegations, which are insufficient to raise a triable issue of fact (see CPLR 3016[6] ; O'Brien v. O'Brien, 258 A.D.2d 446, 446, 685 N.Y.S.2d 254 ; see generally Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 559, 883 N.Y.S.2d 147, 910 N.E.2d 976 ; Heffez v. L & G Gen. Constr., Inc., 56 A.D.3d 526, 527, 867 N.Y.S.2d 198 ).
Accordingly, the court should have granted the plaintiff's motion for summary judgment in lieu of complaint.