Opinion
No. 27200/2011.
2012-10-26
Calogero SABATINO, Plaintiff, v. Louis GALEOTAFIORE et al., Defendant.
Joseph Edward Brady, Esq., Howard Beach, NY, for Plaintiff. Charles Chaim Liechtung, Esq., Valley Stream, NY, for Defendants Louis Galeotafiore, Marie Galeotafiore, Gallo Consulting, and Galeo Provisions, Inc.
Joseph Edward Brady, Esq., Howard Beach, NY, for Plaintiff. Charles Chaim Liechtung, Esq., Valley Stream, NY, for Defendants Louis Galeotafiore, Marie Galeotafiore, Gallo Consulting, and Galeo Provisions, Inc.
CHARLES J. MARKEY, J.
Plaintiff in this breach of contract action seeks to recover monies due pursuant to a written agreement. On January 8, 2006, defendant Louis Galeotafiore requested that plaintiff Calogero Sabatino lend $50,000, to Gallo Consulting Corporation (GCC). In connection with this loan, defendant Louis Galeotafiore prepared a promissory note and personally guaranteed the loan. The loan agreement provided that Louis Galeotafiore was obligated to repay plaintiff by January 8, 2007. The loan bore interest at the rate of twelve percent per year. The loan agreement was signed by both Louis Galeotafiore and the plaintiff.
Plaintiff provided a check in the sum of $50,000.00 from his personal account, and the check was deposited with GCC. Marie Galeotafiore is the wife of Louis Galeotafiore and is president of GCC. Defendant Louis Galeotafiore paid back $8,500.00 of the loan, however, no further payments have been made. The Cross Motion for Summary Judgment
To establish prima facie entitlement to judgment as a matter of law with respect to a promissory note, a plaintiff must show 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 ( see, Gullery v. Imburgio, 74 A.D.3d 1022, 905 N.Y.S.2d 221 [2nd Dept.2010]; Superior Fid. Assur., Ltd. v. Schwartz, 69 A.D.3d 924, 925, 893 N.Y.S.2d 256 [2nd Dept.2010]; Verela v. Citrus Lake Dev., Inc., 53 A.D.3d 574, 575, 862 N.Y.S.2d 96 [2nd Dept.2008]; Levien v. Allen, 52 A.D.3d 578, 860 N.Y.S.2d 174 [2nd Dept.2008] ).
In the present case, the plaintiff, upon the foregoing papers, established his prima facie entitlement to judgment as a matter of law by submitting the promissory note and loan agreement signed by the defendant, coupled with his own affidavit asserting that the defendant failed to repay the loan in accordance with the terms of the note ( see, Verela v. Citrus Lake Dev., Inc., 53 A.D.3d at 575, 862 N.Y.S.2d 96,supra; North Fork Bank v. ABC Merchant Servs., Inc., 49 A.D.3d 701, 853 N.Y.S.2d 633 [2nd Dept.2008]; Suffolk County Natl. Bank v. Columbia Telecom. Group, Inc., 38 A.D.3d 644, 645, 832 N.Y.S.2d 80 [2nd Dept.2007]; Quest Commercial, LLC v. Rovner, 35 A.D.3d 576, 825 N.Y.S.2d 766 [2nd Dept.2006] ).
In opposition to the cross motion for summary judgment, defendants failed to raise a triable issue of fact with respect to a bona fide defense ( see, Gullery v. Imburgio, 74 A.D.3d 1022, 905 N.Y.S.2d 221 [2nd Dept.2010]; Quest Commercial, LLC v. Rovner, 35 A.D.3d 576, 825 N.Y.S.2d 766 [2nd Dept.2006]; Hestnar v. Schetter, 284 A.D.2d 499, 500, 728 N.Y.S.2d 479 [2nd Dept.2001] ). Accordingly, the branch of the cross motion by plaintiff which is for summary judgment in his favor is granted.
The branch of the cross motion by plaintiff which is for sanctions against defendants and their attorney is denied. Plaintiff merely asserts this argument in his preface to the motion and does not specifically indicate what sanctions he is seeking and for what particular infraction. A court order is only enforceable according to its terms, and a party will not be found to be in defiance of an order absent conduct that violates a clear directive ( see, Watson v. Esposito, 231 A.D.2d 512, 647 N.Y.S.2d 233 [2nd Dept.], appeal dismissed,89 N.Y.2d 915 [1996] [discovery] ). The party must be aware of the action required to be undertaken by a preliminary conference order before failure to comply with its terms can be the basis for sanction ( see, Halali v. Evanston Ins. Co., 288 A.D.2d 260, 261, 733 N.Y.S.2d 436 [2nd Dept.2001] [dismissal] ).
Nevertheless, the Court, in its discretion, and pursuant to its power to grant such relief as may be just and proper, awards the plaintiff an additional attorneys fee of $4,500, to the judgment to be settled to the Judgment Clerk. The Motion by Defendant for Discovery
At a compliance conference before Justice Martin E. Ritholtz, held on or about September 12, 2012, following the submission of the present motions, defense counsel withdrew his discovery-related motions. At any rate, in light of the Court's determination granting summary judgment to plaintiff, the defendants' motion for discovery is denied as academic.
In sum, the defense motion is denied. The cross motion is granted to the extent of granting plaintiff summary judgment in his favor, the branch of the cross motion for sanctions is denied, and the plaintiff is awarded an additional $4,500 in attorneys fees pursuant to the Court's inherent power to afford complete relief in appropriate case.
The foregoing constitutes the decision, opinion, and order of the Court.