Opinion
Index No. 653945/2022
06-27-2023
Stanley GUREWITSCH, Plaintiff, v. Martin FAWER and Mark S. Fawer, Defendants.
This is an action on a promissory note and guarantee, brought by plaintiff-lender, Stanley Gurewitsch, against defendant-borrower Mark S. Fawer and defendant-guarantor Martin Fawer.
On motion sequence 001, lender moves under CPLR 3213 for summary judgment in lieu of complaint against both borrower and guarantor. Borrower filed papers opposing the motion. Guarantor did not. On motion sequence 002, guarantor's spouse (Estanne Fawer) moves for appointment of herself as guarantor's guardian ad litem due to what she represents to be guarantor's loss of sufficient mental capacity to protect his legal interests in this action. Lender's CPLR 3213 motion is granted as against borrower. The CPLR 3213 motion is denied without prejudice as against guarantor due to guarantor's death during the pendency of the motion. The motion for appointment of a guardian ad litem is denied as academic due to guarantor's death.
DISCUSSION
The accelerated procedure provided for by CPLR 3213 is available only for "instruments for the payment of money only" (or for payments on judgments). Promissory notes qualify for CPLR 3213 treatment. (See Aranoff v Lipskar , 269 AD2d 124, 124-125 [1st Dept 2000] [reversing denial of CPLR 3213 motion and directing entry of judgment for plaintiff].) A plaintiff may meet its prima facie burden to judgment as a matter of law by "show[ing] the existence of a promissory note, executed by the defendant, containing an unequivocal and unconditional obligation to repay, and the failure by the defendant to pay in accordance with the note's terms." ( Lugli v Johnston , 78 AD3d 1133, 1135 [2d Dept 2010].) The "burden then shifts to the defendant to submit evidence establishing the existence of a triable issue with respect to a bona fide defense." ( Porat v Rybina , 177 AD3d 632, 632 [2d Dept 2019] [internal quotation marks omitted].)
1. With respect to lender's claims against borrower, lender has submitted a copy of the promissory note, executed by borrower (NYSCEF No. 9); and his own affidavit, representing that borrower made only partial payments on the note despite due demand, leaving a significant balance outstanding (see NYSCEF No. 4 at ¶¶ 5-6.) This evidence makes out the necessary prima facie showing.
Borrower does not, in opposition, provide evidence raising a material dispute of fact. At most, borrower's counsel contends in a memorandum of law that "[p]laintiff has not submitted documentary evidence that the promissory note was supported by consideration, as he has not submitted evidence that the loan was made." (NYSCEF No. 23 at 2.) That contention is different from arguing—much less providing evidence—that lender failed to transfer funds to borrower in accordance with the promissory note. (Cf. Porat , 177 AD3d at 633 [holding that defendants raised a triable issue of fact on a CPLR 3213 motion on a promissory note "by submitting their sworn affidavits which averred that the plaintiff failed to transfer any funds or give any financial benefits to the defendants pursuant to the promissory notes"].) Lender's motion is granted as against borrower.
Borrower sought—and obtained—an extension of time to file full opposition papers (beyond just the memorandum of law) on the ground of a death in the family of borrower's lead attorney in this action. (See NYSCEF No. 24.) Borrower did not, however, submit full opposition papers thereafter.
Borrower suggests that this court should refrain from resolving lender's claims against him until guarantor has had an opportunity to submit opposition papers, as well. (See NYSCEF No. 23 at 2.) But borrower does not explain why opposition papers submitted by guarantor might affect lender's claim against borrower, such that resolving now the claim against borrower would be premature.
In addition to the unpaid principal balance ($173,500), lender seeks the award of interest (accruing partly at the contractual rate of 10% and partly at the contractual default rate of 18%), along with attorney fees. (See NYSCEF No. 3 at 3.) Lender has supported its claim for interest with an accountant's affidavit and detailed ledger. (See NYSCEF Nos. 8, 10.) The request for interest is granted. Lender also seeks attorney fees. (NYSCEF No. 3 at 2.) The promissory note provides that lender may recover reasonable attorney fees incurred in collecting (or attempting to collect) on the note. (NYSCEF No. 5 at 2 ¶ 3 [f].) Lender's request for attorney fees awarded against borrower is granted, with the amount of those fees to be determined by a motion on notice.
2. With respect to lender's claims against guarantor, Estanne Fawer wrote to this court on June 26, 2023, to provide notice that guarantor had died on June 15, 2023. (See NYSCEF No. 26 [letter to court]; NYSCEF No. 27 [death certificate].) Guarantor's passing automatically stays adjudication of lender's claim against him until an estate representative can be appointed for him and substituted into this action in his place. ( Griffin v Manning , 36 AD3d 530, 532 [1st Dept 2007].) His passing also renders academic the pending motion for appointment of a guardian ad litem.
Lender has now moved under CPLR 1015 (a) to substitute guarantor's estate as a defendant in guarantor's place. (NYSCEF No. 28.) Although this court declines to resolve the motion until it has been fully briefed and submitted, the court notes that lender's opening motion papers do not say that a personal representative has (already) been appointed for guarantor's estate—a necessary precondition for a proper CPLR 1015/CPLR 1021 substitution. (Singer v Riskin , 32 AD3d 839, 840 [2d Dept 2006].)
Accordingly, it is
ORDERED that the branch of plaintiff-lender's motion under CPLR 3213 (mot seq 001) seeking summary judgment in lieu of complaint against defendant-borrower Mark S. Fawer is granted, and plaintiff is awarded a judgment against Mark S. Fawer for (i) the outstanding principal balance of $173,500, with interest running at the contractual default rate of 18% from October 25, 2022; plus (ii) already accrued interest of $56,769.53; plus (iii) costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that lender may obtain entry of a supplemental judgment against Mark S. Fawer for lender's reasonable attorney fees, with the amount of those fees to be determined by a motion made on notice; and it is further
ORDERED that lender's claims against defendant-guarantor Martin Fawer are severed and shall continue, with those claims to be stayed going forward due to Fawer's death, pending the substitution into this action of a proper personal representative of Fawer's estate; and it is further
ORDERED that the branch of lender's CPLR 3213 motion seeking summary judgment in lieu of complaint against Martin Fawer (mot seq 001) is denied due to Fawer's death, without prejudice to the motion's renewal following substitution of a proper estate representative; and it is further
ORDERED that Estanne Fawer's motion for appointment of a guardian ad litem for Martin Fawer (mot seq 002) is denied as academic due to Fawer's death; and it is further
ORDERED that lender shall serve a copy of this order with notice of entry on all parties and on Estanne Fawer; and on the office of the County Clerk, which shall enter judgment accordingly.