Opinion
No. 5242/2012.
2012-09-19
WHITE ROSE, INC., Plaintiff, v. NEWTOWN FOOD MARKET, INC. and Colleen Kotsovos, Defendants.
ROBERT J. McDONALD, J.
The following papers numbered 1 to 12 were read on this motion by the plaintiff for summary judgment in lieu of complaint pursuant to CPLR 3213:
+-----------------------------------------------------------+ ¦Papers ¦Numbered ¦ +------------------------------------------------+----------¦ ¦Notice of Motion–Affidavits–Exhibits–Memo of Law¦1–5 ¦ +------------------------------------------------+----------¦ ¦Affirmation in Opposition–Affidavits–Exhibits ¦6–9 ¦ +------------------------------------------------+----------¦ ¦Reply affirmation-Memo of Law ¦10–12 ¦ +-----------------------------------------------------------+
By motion dated March 6, 2012, plaintiff moves pursuant to CPLR 3213 for summary judgment in lieu of complaint with regard to a Promissory Note and Guaranty dated November 28, 2011. Pursuant to the terms of the Note, signed by Colleen Kotsovos, as President of Newtown Food Market, Inc., the defendants agreed to pay the sum of $83,484.60 to White Rose, Inc. with interest at the rate of 8.25% per annum payable over 26 consecutive weeks at the rate of $1,500 per week commencing on December 5, 2011 with the final payment due on November 26, 2012. The Note states that in the event of nonpayment of any installment of principal or interest which is not cured within 5 days from the due date, the payee may opt to accelerate the full amount due. The Note also states that upon default, the payee has the option to increase the interest rate on the note by 4% per annum to 12.25% from the date of such nonpayment until the default is cured.
The Guaranty signed by Colleen Kotsovos, individually, states that Ms. Kotsovos guarantees the payment of the subject Note to the payee. The Guaranty states that it is irrevocable, continuing, absolute and unconditional and may be proceeded upon immediately upon the default of the maker.
In support of the plaintiff's motion, Dennis Stickley, Vice President of White Rose, Inc., submits an affidavit dated March 6, 2012, in which he states that Newtown defaulted pursuant to the terms of the Note by failing to make its timely payment due on January 16, 2012 and defaulted on each and every payment due thereafter. Mr. Stickley states that a Default and Acceleration Notice was served on Newtown and Ms. Kotsovos on January 27, 2012. Plaintiff states that as of March 5, 2012 there is due and owing to White Rose the sum of $74,742.19.
Plaintiff's counsel contends that the evidence submitted is sufficient to prove, prima facie, that defendant, Ms. Kotsovos, signed both a Promissory Note and Guaranty in which defendants were obligated to make payments of a sum certain and that the defendants defaulted on that obligation. Counsel contends, therefore, that pursuant to CPLR 3213 plaintiff is entitled to have summary judgment in lieu of complaint entered in favor of White Rose, Inc. in the sum of $74,742.19, together with interest at the rate of $17.88 per diem from March 5, 2012 to the date of entry of judgment (citing AFCO Credit Corp. v. Boropark Twelfth Ave. Realty Corp., 187 A.D.2d 634, 590 N.Y.S.2d 519 [2d Dept.1992] ).
In opposition, defendants' counsel, Matthew S. Porges, Esq., submits an affirmation stating that this Court lacks personal jurisdiction over defendant Kotsovos. The affidavit of service states that on March 26, 2012, process server Michael Ballato, served the summons and a copy of the motion for summary judgment in lieu of complaint on defendant Colleen Kotsovos by serving a person of suitable age and discretion at defendant's actual place of business located at 21–30 Newtown Avenue, Astoria, New York. Colleen Kotsovos submits an affidavit dated June 15, 2012, stating that although she is an owner of Newtown Food Market, she does not work on the premises of the supermarket. She states that most of the work which she does for Newtown is done from her home on Long Island. She states that she only goes to Newtown once or twice a week and stays only for such time that she is needed for a meeting or other concern and then she immediately leaves. Counsel contends, therefore, that service was not proper pursuant to CPLR 308(2) because Newtown Supermarket is not Ms. Kotsovos' actual place of business.
In addition, counsel claims that the motion must be denied as the defendants have a bona fide defense based upon fraud. In this regard, Ms. Kotsovos states in her affidavit that prior to signing the promissory note in November 2011, Mr. Stickley told her that White Rose would deliver goods to be sold at the new supermarket and they could pay for said goods over time through the Promissory Note and Guaranty. She states that plaintiff misrepresented that by signing the note, Newtown was only committing to funding the initial delivery and would not be committing to be part of plaintiff's regular delivery of goods and that plaintiff would be free to order goods from plaintiff after the initial delivery but would not be required to do so. Defendant claims, however, that after the note was signed plaintiff began to send Newtown unrequested goods and also advertised Newtown as part of plaintiff's family of stores. Ms. Kotsovos states that plaintiff later forced Newtown to accept minimum delivery of goods. She states that Newtown was damaged in that it was forced to pay for numerous unsolicited deliveries of goods and advertising materials. Counsel contends that said representations constitute fraud in that the defendants relied on same in entering into the promissory note and accepting the initial delivery of goods.
In reply, Mr. Stickley submits an affidavit dated June 19, 2012, in which he states that no representations were made to the defendants with regard to obligations to purchase additional consignments of goods after the initial delivery. He also states that plaintiffs did not deliver any goods that defendants did not request or wish to sell and that the did not force defendant to accept minimum deliveries of goods they could not sell. Mr. Stickley also points out that defendants failed to provide the Court with any evidence of shipments of goods that they did not order. Further, he contends that the promissory note dates back to the delivery of goods that were in fact delivered to defendant to stock the opening of Newtown as a new supermarket. Plaintiff also asserts that defendant does not dispute that plaintiff did not deliver the goods to stock the supermarket; does not state that the goods delivered were defective; and does not assert that the defendants were not able to or did not sell the goods that were delivered. Lastly, plaintiff argues that defendants do not dispute the validity of the Note and Guaranty and do not dispute that they are in default under the terms of the promissory note.
Upon review of the plaintiff's motion for summary judgment, defendant's affirmation in opposition and plaintiff's reply thereto, this court finds as follows:
Jurisdiction
CPLR 308(2) authorizes service of process to be made by delivery to a person of suitable age and discretion at the defendant's actual place of business, dwelling place, or usual place of abode, and by mailing process to the defendant at either his or her last known residence or actual place of business.
A process server's affidavit, providing factual information showing that service was made in accordance with CPLR 308, constitutes prima facie evidence of proper service (see Bank, Natl. Assn. v. Arias, 85 A.D.3d 1014, 927 N.Y.S.2d 362 [2d Dept.2011]; Scarano v. Scarano, 63 A.D.3d 716, 880 N.Y.S.2d 682 [2d Dept.2009] ). Here, the process server's affidavit stating that service was made upon a person of suitable age and discretion at the defendant's principal place of business constituted prima facie evidence of proper service pursuant to CPLR 308(2).
However, a defendant's sworn denial of receipt of service, containing specific facts to rebut the statements in the process server's affidavit, “generally rebuts the presumption of proper service established by a process server's affidavit and necessitates an evidentiary hearing” (City of New York v. Miller, 72 A.D.3d 726, 898 N.Y.S.2d 643 [2d Dept.2010]; also see Associates First Capital Corp. v. Wiggins, 75 A.D.3d 614, 904 N.Y.S.2d 668 [2d Dept.2010]; Washington Mut. Bank v. Holt, 71 A.D.3d 670, 897 N.Y.S.2d 148[2d Dept.2010] ).
Here, this court finds that the affidavit of Ms. Kotsovos to the effect that because she works at home, the Newtown Store is not her actual place of business is insufficient to rebut the proper service upon her individually by service to a person of suitable age and discretion at the business in which she is admittedly the President and a principal owner.
The defendant does not claim that the summons was not served at Newton's actual place of business at 21–30 Newtown Avenue Astoria NY, or that Marion Michaels, the person to whom personal service was made was not a person of suitable age and discretion. Her only claim is that the Newtown Supermarket was not her actual place of business because although she was an owner, she didn't actually work on the premises but only went to the store two times a week for meetings. This contention is without merit. The Appellate Division has specifically held that “inasmuch as [defendant] was an officer and co-owner of the business where CPLR 308(2) service was made..it is not significant that she worked mainly from her house rather than the place of business” (Columbus Realty Inv. Corp. v. Weng–Heng Tsiang, 226 A.D.2d 259, 641 N.Y.S.2d 265 [1st Dept.1996]; also see Gibson, Dunn & Crutcher LLP v. Global Nuclear Servs. & Supply, 280 A.D.2d 360, 721 N.Y.S.2d 315[1st Dept.2001] ). It is clear that Ms. Kotsovos was an owner of Newtown, that she held herself out as the President of the Newtown, and that she was on the premises for the purpose of transacting business on regular occasions. Accordingly, this court finds that Newtown was her actual place of business for purposes of service, and therefore, both defendants were properly served pursuant to CPLR 308(2).
SUMMARY JUDGMENT
“To establish a 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 Larry Lawrence IRA v. Exeter Holding Ltd., 84 A.D.3d 1175, 924 N.Y.S.2d 799 [2d Dept.2011]; Signature Bank v. Galit Props., Inc., 80 A.D.3d 689, 915 N.Y.S.2d 138 [2d Dept.2011]; Lugli v. Johnston, 78 A.D.3d 1133, 912 N.Y.S.2d 108 [2d Dept.2010]; Gullery v. Imburgio, 74 A.D.3d 1022, 905 N.Y.S.2d 221 [2d Dept.2010]; Superior Fid. Assur., Ltd. v. Schwartz, 69 A.D.3d 924, 893 N.Y.S.2d 256 [2d Dept.2010]; Verela v. Citrus Lake Dev., Inc., 53 A.D.3d 574, 862 N.Y.S.2d 96 [2d Dept.2008]; Levien v. Allen, 52 A.D.3d 578, 860 N.Y.S.2d 174 [2d Dept.2008] ).
Here, the plaintiff established its prima facie entitlement to judgment as a matter of law by submitting a copy of the Promissary Note signed by Ms. Kotsovos as President of Newtown, as well as her personal guaranty together with the affidavit of Mr. Stickley asserting that the defendants failed to make payment on the Note after a demand in accordance with the terms of the note (see Verela v. Citrus Lake Dev., Inc., 53 A.D.3d 574, 862 N.Y.S.2d 96 [2d Dept.2008]; Hestnar v. Schetter, 284 A.D.2d 499, 728 N.Y.S.2d 479 [2d Dept.2001] ). The burden then shifted to the defendants to establish by admissible evidence the existence of a triable issue of fact with respect to a bona fide defense (see Sce v. Ach, 56 A.D.3d 457, 867 N.Y.S.2d 140 [2d Dept.2008]; Quest Commercial, LLC v. Rovner, 35 A.D.3d 576, 825 N.Y.S.2d 766 [2d Dept.2006]; Bank of N.Y. v. Vega Tech. USA, LLC, 18 A.D.3d 678, 794 N.Y.S.2d 922 [2d Dept.2005] ).
In opposition, the defendant failed to raise a triable issue of fact with respect to a bona fide defense. Although the defendant claims that plaintiff represented that she would only be obligated to pay for the initial shipment of goods which was secured by the promissory note, she also claims that the plaintiff subsequently forced her to buy additional goods which she did not want. However, she does not dispute that she received the original shipment of goods, does not contend that the goods she received were defective and does not dispute that she guaranteed payment for those goods, re-sold the goods to the public and then defaulted on the promissory note and guaranty. Whether the plaintiffs required the defendants to buy additional goods after the original shipment was received and after the promissory note was signed may be the subject of a separate plenary action, but it does not constitute a bona fide defense to the default on the Note. The fraud that is alleged concerns events that occurred subsequent to the signing of the note and pertain to additional business dealings between the parties (see Constructamax, Inc. v. CBA Assocs., 294 A.D.2d 460, 742 N.Y.S.2d 555 [2d dept.2002] ). The defendants' unsupported, conclusory allegations as to misrepresentations were insufficient to demonstrate that the note was signed due to fraudulent inducement (see Jin Sheng He v. Sing Huei Chang, 83 A.D.3d 788, 921 N.Y.S.2d 128 [2d Dept.2011]; E.D.S. Sec. Sys. v. Allyn, 262 A.D.2d 351, 691 N.Y.S.2d 567 [2d Dept.1999] ).
Therefore, since the defendants failed to demonstrate, by admissible evidence, the existence of a triable issue of fact with respect to a bona fide defense, the plaintiff's motion for summary judgment in lieu of complaint against both Newtown Food Market, Inc., and Colleen Kotsovos is granted (see Webster v. Murray, 70 A.D.3d 674, 894 N.Y.S.2d 486 [2d Dept.2010]; Colonial Commercial Corp. v. Breskel Assocs., 238 A.D.2d 539, 657 N.Y.S.2d 940 [2d Dept.1997] ).
Accordingly, it is hereby
ORDERED, that judgment is granted to the plaintiff against the defendants in amount of $74,742.19 with interest from March 5, 2012 plus costs.
Settle judgment on notice.