Opinion
2018–04930 Index No. 102720/09
08-07-2019
DCFS TRUST, Respondent, v. COFFEE HOLDING CO., INC., et al., Appellants.
Gerard Decapua, Rockville Centre, N.Y. (Bernard G. Chambers of counsel), for appellants. Deily & Glastetter, LLP, Albany, N.Y. (Pilar Cano of counsel), for respondent.
Gerard Decapua, Rockville Centre, N.Y. (Bernard G. Chambers of counsel), for appellants.
Deily & Glastetter, LLP, Albany, N.Y. (Pilar Cano of counsel), for respondent.
WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, BETSY BARROS, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the order is modified, on the law, by deleting the provision thereof, in effect, directing entry of a judgment in the principal sum of $13,015; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Richmond County, for a trial on the issue of damages.
On July 15, 2006, the defendant Coffee Holding Co., Inc. (hereinafter Coffee Holding), entered into a lease for a Mercedes Benz vehicle with Sovereign Motor Cars, Ltd. The defendant Andrew Gordon, the president of Coffee Holding, personally guaranteed the lease. The lease was assigned to the plaintiff. The defendants returned the car before the end of the lease term and stopped making payments thereunder. The plaintiff commenced this action against the defendants to recover damages for breach of contract. The plaintiff moved for summary judgment on the complaint. The Supreme Court granted the motion and, in effect, directed entry of a judgment awarding the plaintiff the principal sum of $13,015. The defendants appeal.
The plaintiff established its prima facie entitlement to judgment as a matter of law on the issue of liability by submitting a copy of the lease and an affidavit from an account manager (see 82–90 Broadway Realty Corp. v. New York Supermarket, Inc. , 154 A.D.3d 797, 798, 62 N.Y.S.3d 186 ; Great Neck Terrace Owners Corp. v. McCabe, 101 A.D.3d 944, 945, 957 N.Y.S.2d 216 ). In opposition, the defendants failed to raise a triable issue of fact as to liability (see 82–90 Broadway Realty Corp. v. New York Supermarket, Inc. , 154 A.D.3d 797, 62 N.Y.S.3d 186 ; Elm Realty Assoc., LLC v. Leben, LLC, 22 A.D.3d 790, 793, 803 N.Y.S.2d 683 ).
However, the defendants raised a triable issue of fact regarding the costs charged for excessive wear and tear at the end of the lease term, thereby requiring that the matter be remitted to the Supreme Court, Richmond County, for a trial on the issue of damages (see All Is. Credit Corp. v. Lincoln Gen. Ins. Co. , 49 A.D.3d 573, 574, 853 N.Y.S.2d 386 ).
MASTRO, J.P., MILLER, BARROS and CHRISTOPHER, JJ., concur.