Opinion
2014-05-8
LFR COLLECTIONS LLC, as Acquirer of The Stillwater Asset–Backed Fund LP, Plaintiff–Respondent, v. BLAN LAW OFFICES, et al., Defendants–Appellants.
Nowell Amoroso Klein Bierman, P.A., New York (Rick A. Steinberg of counsel), for appellants. Mayer Brown LLP, New York (Kathryn M. Throo of counsel), for respondent.
Nowell Amoroso Klein Bierman, P.A., New York (Rick A. Steinberg of counsel), for appellants. Mayer Brown LLP, New York (Kathryn M. Throo of counsel), for respondent.
SAXE, J.P., MOSKOWITZ, FREEDMAN, GISCHE, KAPNICK, JJ.
Judgment, Supreme Court, New York County (Charles E. Ramos, J.), entered September 21, 2012, awarding plaintiff the total sum of $4,589,352.30, and bringing up for review an order, same court and Justice, entered March 29, 2012, which granted plaintiff's motion for summary judgment in lieu of complaint, unanimously affirmed, without costs. Order, same court and Justice, entered August 27, 2012, which, to the extent appealable, denied defendants' motion to renew, unanimously affirmed, without costs.
Plaintiff's motion for summary judgment in lieu of complaint was properly granted. With respect to the individual defendant, Kenneth W. Blan, he signed an unconditional guarantee in which he waived the right to interpose a defense. The guaranty also stated that it would not be affected by any invalidity or unenforceability of the underlying obligation of the borrower defendant Blan Law Offices ( see e.g. Citibank v. Plapinger, 66 N.Y.2d 90, 495 N.Y.S.2d 309, 485 N.E.2d 974 [1985];Red Tulip, LLC v. Neiva, 44 A.D.3d 204, 842 N.Y.S.2d 1 [1st Dept.2007],lv. dismissed10 N.Y.3d 741, 853 N.Y.S.2d 283, 882 N.E.2d 896 [2008],lv. denied 13 N.Y.3d 709, 2009 WL 3349931 [2009] ). Although defendant law firm waived the right to interpose any set-off or counterclaim and not the right to assert defenses, its defenses fail to raise a triable issue of fact since they do not provide any excuse for the failure to pay on the note.
The motion court properly denied defendants' motion to renew. To the extent it was not based on “new facts,” it was a motion to reargue, the denial of which is not appealable ( see CPLR 2122[e][2]; Prime Income Asset Mgt., Inc. v. American Real Estate Holdings L.P., 82 A.D.3d 550, 551, 918 N.Y.S.2d 467 [1st Dept.2011],lv. denied17 N.Y.3d 705, 929 N.Y.S.2d 96, 952 N.E.2d 1091 [2011] ), and defendants failed to provide any justification for failing to present the motion court with these facts which were available at the time the original motion was made. To the extent defendants submitted new evidence, albeit without a “reasonable justification” for not previously offering it, the facts submitted would not “change the prior determination” ( Prime Income Asset Mgt., 82 A.D.3d at 551, 918 N.Y.S.2d 467).
Defendants also failed to explain why they did not previously argue that plaintiff improperly compounded the interest ( see Cuccia v. City of New York, 306 A.D.2d 2, 3, 761 N.Y.S.2d 31 [1st Dept.2003] ). Even if we were to consider the merits of this argument in the interest of justice ( see Rancho Santa Fe Assn. v. Dolan–King, 36 A.D.3d 460, 461, 829 N.Y.S.2d 39 [1st Dept.2007] ), plaintiff denied that it compounded the interest and explained its calculations in its opposition to the motion to renew and defendants did not submit a reply disputing plaintiff's calculations.