Opinion
Index 653146/2021
12-10-2021
MEDALLION BANK, Plaintiff, v. CHOPPER TAXI INC. and MEIR YAKUEL, Defendants. Motion Seq. No. 001
LOUIS L. NOCK, J.S.C.
UNPUBLISHED OPINION
MOTION DATE 08/31/2021
PART 38M
PRESENT: HON. LOUIS L. NOCK, JUSTICE
DECISION + ORDER ON MOTION
LOUIS L. NOCK, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, and 46 were read on this motion for SUMMARY JUDGMENT .
Upon the foregoing documents, and after argument, it is ordered that the plaintiff's motion for summary judgment is denied, without prejudice to renew upon the additional submission of a Statement of Material Facts pursuant to 22 NYCRR § 202.8-g.
This is an action by an industrial bank which financed the purchase by the corporate defendant of New York City Taxi Medallions. The relevant promissory note had an original face amount of $1,100,000. The loan was secured by security interests in the medallions. Further security consisted of a guaranty executed and tendered by the individual defendant.
The complaint alleges that the loan is in default and the corporate defendant has failed to turn over the medallions securing the loan. The complaint asserts three causes of action: a first, against the corporate defendant for the outstanding balance of the loan plus costs, fees, and interest; a second, against the corporate defendant for immediate turnover of the medallions; and a third, against the individual defendant (guarantor) for the outstanding balance of the loan plus costs, fees, and interest. Defendants have filed an answer asserting affirmative defenses.
Plaintiff now moves for summary judgment on its complaint and, in so doing, has submitted supporting materials in the form of affidavits and exhibits, consonant with the threshold requirements of CPLR 3221 (b) (see, NYSCEF Doc. Nos. 14-33). However, as counsel for defendants points out in opposition to the motion, plaintiff has not submitted a Statement of Material Facts pursuant to 22 NYCRR § 202.8-g. That rule was added December 29, 2020, and became effective February 1, 2021, pursuant to Administrative Order of the Chief Administrative Judge of the Court - No. AO/270/2020, dated December 29, 2020. Plaintiffs instant motion was filed after said effective date, on August 31, 2021 (see, NYSCEF Doc. No. 14 [Notice of Motion]).
Available at: AO-270-20.pdf (nycourts.gov)
On account of the lack of a Statement of Material Facts, defendants' counsel has asked this court to issue a straight denial of the motion, with finality, and to compel this case into a discovery phase; calling on this court to "exercise its equitable powers in the interest of justice" in doing so (NYSCEF Doc. No. 36 at 17 [Defendants' Memorandum]). Said counsel's request for such a disposition follows his enthused discussion of a decision issued by the Supreme Court, Rockland County, titled Amos Financial LLC v Crapanzano (73 Misc.3d 448, 154 N.Y.S.3d 366 [Sup Ct, Rockland County, July 30, 2021]), which not only finally denied a plaintiffs motion for summary judgment for the lack of a Statement of Material Facts; but went even further to issue what that court called an "Admonishment to Plaintiff (154 N.Y.S.3d at 374-75). This court declines to adopt such a disposition in this case.
To be sure - plaintiffs motion does lack the ingredient of a Statement of Material Facts, which ingredient is undeniably required under the relatively new procedural rule - Rule 202.8-g of Title 22 of the New York Code of Rules and Regulations. However, in all other respects - including statutory respects promulgated in CPLR 3212 (b) - the motion is properly supported from a procedural standpoint. Obviously, substantive success remains to be determined. But instead of placing weight on defendants' counsel's urging to "deny the motion in its entirety," characterizing that as "the interest of justice" (NYSCEF Doc. No. 36 at 17), or on what another court preferred to do as an "[admonishment" (Amos Financial LLC, supra [Sup Ct Rockland County]), this court derives less severe guidance from CPLR 2101 (f), titled "Defects in form," which envisions a more flexible approach toward procedural oversights by litigating parties. It authorizes a court to preserve the efficient and just continuity of the proceedings by allowing defects to be corrected. And that is precisely why this court refrains from issuing final denial of the plaintiffs motion; but instead, denies the motion without prejudice to renew upon the additional submission of a Statement of Material Facts.
The within disposition is limited to the precise procedural and temporal circumstances of the subject motion.
Accordingly, it is
ORDERED that plaintiffs motion for summary judgment is denied without prejudice to plaintiffs right (in this particular action only) to renew the motion upon submission of a Statement of Material Facts pursuant to 22 NYCRR § 202.8-g; and it is further
ORDERED that said renewal may consist of an attorney's affirmation asking the court to re-consider the present filings in conjunction with a newly filed Statement of Material Facts; and it is further
ORDERED that any such renewal shall occur no later than 30 days from the date of filing hereof; and it is further
ORDERED that any opposition to any such renewed motion for summary judgment may consist of an attorneys' affirmation asking the court to re-consider the present filings in conjunction with a Counter-Statement of Material Facts pursuant to 22 NYCRR § 202.8-g.
This will constitute the decision and order of the court.