Opinion
Index No. 511747/2022
01-03-2024
SANTANDER BANK, N.A., Plaintiff, v. AOK MAINTENANCE PRODUCTS CORP, and ABRAHAM KAUFMAN, Defendants.
Unpublished Opinion
DECISION/ORDER
PETER P. SWEENEY, J.S.C.
The following papers, which are e-Sled with NYCEF as items 11-46. were read on this motion and cross-emotion:
The plaintiff, SANTANDER BANK, N.A., moves for an Order: (i) pursuant to CPLR § 3212. granting plaintiff summary judgment against the defendants, AOK MAINTENANCE PRODUCTS CORP. ("AOK") and ABRAHAM KAUFMAN, for the relief demanded in foe complaint; (ii) dismissing their Verified Answer containing unsubstantiated affirmative defenses on the grounds that ho triable issues of fact exist; (iii) dismissing the Counterclaims with prejudice; and (iv) granting such other and further relief as this Court may deem just and proper (Motion Sequence # 1). The Defendants, AOK and Abraham Kaufman cross-move pursuant to CPLR 3212 for an Order awarding then summary judgment and for such other and further relief as to the Court seems just and proper (Motion Sequence # 2).
Background:
The plaintiff brought this action against the defendants claiming that the defendant-borrower, AOK. defaulted under a Note and seeks to recover the outstanding balance, interest, and attorney's fees from AOK and from ABRAHAM KAUFMAN, the guarantor. The record on the motion reveals that prior to the institution, of the action, the plaintiff, by letter dated October 29, 2019, gave AOK the option of entering into a Deferred Payment Agreement, which allowed AOK to pay off the note making monthly payments in specified amounts. The defendant apparently agreed to this and began making such payments. The wording of Deferred Payment Agreement makes clear that even if the plaintiff was entitled to payment in full from AOK before the defendant entered into this agreement, by all giving AOK the option of paying off the note in monthly payments, the plaintiff waived its entitlement to immediate payment in full. In his regard, the Deferred Payment Agreement provided as follows: "Failure [to accept the terms of the Deferred Agreement] by 10/29/2019 will leave us with no alternative but to demand payment in full under the note." The Deferred Payment Agreement also provided "if any Deferred Repayment Option payment is not paid when due, or if any other default occurs as referenced in the original Loan documents, then your Deferred Repayment Option will automatically end, and the Bank will require the immediate Loan repayment in full."
Considering the above, to prevail on its motion for summary judgment, it was incumbent upon the plaintiff to demonstrate by admissible proof the plaintiff demanded payment in full under the Deferred Payment Agreement prior to commencing the action. Plaintiff's initial moving papers are devoid of such proof. While the plaintiff claims a letter was sent to AOK on its behalf on March 31, 2022, demanding payment in full, a copy of this letter was neither annexed to plaintiffs initial moving papers or referred to therein. Indeed, a copy of this letter was submitted for the first time as an exhibit to plaintiff s opposition to defendants' cross-motion to dismiss. Since it was incumbent upon the plaintiff to make put a prima facie case of entitlement to summary judgment it its initial papers, the motion must be denied (see L'Aquila Realty, LLC v. Jalyng Food Corp., 103 A.D.3d 692, 692, 959 N.Y.S.2d 724; Rengifo v. City of New York, 7 A.D.3d 773, 776 N,Y.S.2d 865; Adler v. Suffolk County Water Auth., 306 A,D,2d 229.230. 760 N.Y.S.2d 523).
Moreover, the plaintiff initial moving papers were devoid of any admissible proof demonstrating that the March 31, 2022 letter was mailed to the AOK. "Proof of the requisite mailing is established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure" (Wells Fargo Bank, NA v. Mandrin, 160 A.D.3d 1014, 1016, 76N.Y.S.3d 182; see also Deutsche Bank Nat 'l Tr. Co, v. Feeney, 188 A.D.3d 997, 998, 137 N.Y.S,3d 405. 406-07). No such proof was ever submitted.
Finally, the plaintiff did not submit any admissible proof of defendant AOK's default under the Deferred Payment Agreement or the amount due (see, Layden v Boccio, 253 A.D.2d 54Q, 686 N.Y. S.2d 763 (1998), Money Store v Kuprianchik, 240 A.D.2d 398; Naugatuck Sav. Bank v Gross, 214 AD 2d 549; Samsung Am. v Noah. 209 A.D.2d 367). To establish these elements, the plaintiff relied solely on its business records but did not annex to its initial moving papers the business records upon which it relied. Consequently, plaintiff s contention that defendant AOK defaulted under the agreement and the amount that is allegedly due under the agreement was not demonstrated by admissible proof (see Bank of N.Y. Mellon v. Conforti, 209 A.D.3d 942, 946, 176 N.Y.S.3d 682; Christiana Trust v. Campbell, 202 A.D.3d 750, 751, 158 N.Y.S. 3d 835; M & T Bank v. Bonilla, 215 A.D.3d 813, 815, 188 N.Y.S.3d 509. 511). Although the plaintiff annexed copies of certain of its business records in its reply papers, a party cannot meet its prima facie burden based on evidence submitted for the first time in reply papers (see L'Aquila Realty. LLC v Jalyng Food Corp., 103 A.D.3d 692, 692, 959 N.Y.S.2d 724; Rengifo v. City of New York, 7 A.D.3d 773, 776 N.Y.S.2d 865; Adler v. Suffolk County Water Auth. 306 A.D.2d 229, 230, 760 N.Y.S.2d 523). For the above reasons, plaintiff s motion for summary judgment against defendants must be denied.
Turning to the cross-motion, the defendant did mot establish as a matter of law that the plaintiff failed to demand payment in full under the Deferred Payment Agreement prior to commencing the action. For this reason, the cross- motion must be denied.
Accordingly, it is hereby
ORDRED that the motion and cross-motion are DENIED.
This constitutes the decision and order of the Court.