Opinion
No. 506811/2023 Cal. No. 6 Msq No.1
04-24-2024
DAVID WISHNICK, Plaintiff, v. PLEASANT GROVE BAPTIST CHURCH, ALBERT JAMISON, MICHAEL ANDERSON, MICHELE ANDERSON, SEGRUN WALKER and CLAY JOHNSON, Defendants.
Unpublished Opinion
DECISION & ORDER
HON. RUPERT V. BARRY, A.J S.C
Recitation, as required by CPLR 2219(a), of the papers considered in the review of Plaintiff's motion for summary judgment and to substitute parties: NYSCEF Doc. Nos. 10-16.
Upon the following cited papers and after oral argument, this Court's Decision and Order on Plaintiff David Wishnick's motion for, inter alia, summary judgment and to substitute parties (Motion Seq. 001), this Court finds as follows:
This Court finds that, pursuant to CPLR 1015(a) and 1021, Shari Schieber, as Executrix of the Estate of David Wishnick, shall be substituted as Plaintiff in this action and the caption of this matter shall be amended to reflect the substitution. It is undisputed that Plaintiff David Wishnick has died. Thereafter, on August 1, 2023, Letters Testamentary were issued to Shari Schieber ("Schieber") by the Surrogate's Cout of the State of New York, County of Kings, in which she was appointed as Executrix of the Estate of David Wishnick. Given that Schieber was duly appointed the executrix of Plaintiff s estate and that this application was made within a reasonable time (see generally, Tag 380, LLC v Estate of Howard P. Ronson, 69 A.D.3d 471, 473 [1st Dept 2010]), Plaintiff s motion to substitute Plaintiff with "Shari Schieber, as Executrix of the Estate of David Wishnick" is granted.
This Court further finds that Plaintiff met his prima facie burden of demonstrating entitlement to summary judgment as a matter of law pursuant to CPLR 3212 against the Defendants. Plaintiff demonstrated the existence of a promissory note, dated August 16, 2019 ("Note"), that said Note was executed by all of Defendants in this action, that the Note contained an unequivocal and unconditional obligation to repay, and that Defendants failed to pay the Note in accordance with its terms (on or before the maturity date of January 16, 2020) (Torto Note Member, LLC v Babad, 192 A.D.3d 843, 843-44 [2d Dept 2021]). The burden then shifted to Defendants to submit evidence of a triable issue with respect to a bona fide defense, but Defendants failed to oppose this motion. Therefore, the branch of Plaintiff's motion seeking summary judgment on Plaintiff s first cause of action for breach of the Note is granted.
Further, paragraph 4(B) of the Note provides that Plaintiff has the right to collect from Defendants the costs and expenses (including reasonable attorneys' fees) incurred by Plaintiff in the event that Defendants defaulted on the Note. It is well settled that provisions in a contract that provide for recovery of attorneys' fees and expenses are valid and enforceable (Livigne v D'Agostino Supermarkets, Inc., 207 A.D.2d 776, 777 [2d Dept 1994]). Thus, the branch of Plaintiff s motion seeking summary judgment on his second cause of action is granted, and this cause of action shall hereby be severed for a hearing to compute Plaintiffs attorneys' fees, costs and expenses.
Turning to the branch of Plaintiff s motion seeking dismissal of Defendants' affirmative defenses as alleged in Defendants' Notice of Appearance and Answer, Plaintiff has established prima facie entitlement to dismissal of these defenses. Where affirmative defenses merely plead conclusions of law without any supporting facts, the affirmative defenses should be dismissed pursuant to CPLR 3211(b) (Verela v Citrus Lake Dev., Inc., 53 A.D.3d 574, 575 [2d Dept 2008]). Defendants' first affirmative defense alleged in paragraph 4 of their Answer for failure to state a cause of action is conclusory and lacks factual support. Further, Plaintiffs Complaint properly asserts a cause of action for breach of the Note. Therefore, Defendants' first affirmative defense is dismissed.
Defendants' second affirmative defense alleged in paragraph 5 of the Answer states that Plaintiff David Wishnick in not the proper party to maintain this action as he has died. This affirmative defense has been addressed by the branch of Plaintiff s motion, granted herein, which seeks the substitution of the estate's fiduciary as the plaintiff in this action. As such, Defendants' second affirmative defense is dismissed as moot.
Defendants' third affirmative defense alleged in paragraphs 6-7 of the Answer is based on the claim that Defendant Pleasant Grove Baptist Church was required to obtain the consent and/or approval of the Attorney General of the State of New York and/or the Supreme Court of the State of New York prior to executing a note or mortgage or borrowing any sum of money. This defense, however, misstates the law. Religious Corporation Law §12 prohibits a religious corporation from selling, mortgaging or leasing its real property without first applying for leave of the Court or the Attorney General. The Religious Corporation Law does not, however, preclude a religious corporation from entering into an unsecured promissory note. Here, the Note is not secured by any real property and no mortgage or hen has been placed against any property owned by Defendants herein. Therefore, Defendants' third affirmative defense is dismissed.
For the aforementioned reasons, it is
ORDERED, that Plaintiff s motion requesting substitution of "Shari Schieber, as Executrix of the Estate of David Wishnick" as Plaintiff in this action is GRANTED, and this Court hereby directs the Clerk of the Court to amend the caption to reflect this substitution. It is further, ORDERED, that Plaintiff s motion for summary judgment against Defendants on its first cause of action is GRANTED, and the Clerk of the Court is hereby directed to enter a money judgment against all Defendants, jointly and severally, in the principal amount of Eighty Thousand Dollars ($80,000.00), together with interest thereon from January 16, 2020. It is further
ORDERED, that Plaintiff s motion for summary judgment against Defendants, jointly and severally, on its second cause of action is GRANTED, and that cause of action is hereby severed for a hearing to compute the amount of attorneys' fees, costs and expenses due and owing to Plaintiff. It is further
ORDERED, that Defendants' affirmative defenses as set forth in their Answer are dismissed. It is further
ORDERED, that all applications not specifically addressed herein are denied. This constitutes the decision and order of this Court.