Opinion
113186/10
02-15-2012
Valley National Bank, Plaintiff, v. Soho Properties Inc. and SHARIF EL GAMAL, Defendants
Plaintiff's attorneys are Cullen and Dykman LLP, by Jocelyn E. Lupetin, Esq. Defendant's attorneys are Adam Leitman Bailey, P.C., by Adam Leitman Bailey, Esq.
Plaintiff's attorneys are Cullen and Dykman LLP, by Jocelyn E. Lupetin, Esq.
Defendant's attorneys are Adam Leitman Bailey, P.C., by Adam Leitman Bailey, Esq.
Richard F. Braun, J.
This is an action on a commercial revolving line of credit note and agreement, and a guaranty thereon, both entered into on February 22, 2008, with a principal balance outstanding of $95,778.85. Plaintiff Valley National Bank moves for summary judgment against defendants. Defendant Soho Properties Inc. and defendant guarantor Sharif El Gamal oppose the motion asserting that plaintiff is without authority to bring this action because plaintiff is not an authorized foreign corporation, that the motion for summary judgment lacks a non-hearsay statement in support, and that there is no sworn statement that either defendant was ever loaned any money.
A party moving for summary judgment must demonstrate his, her, or its entitlement thereto as a matter of law, pursuant to CPLR 3212 (b) (Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [2008]; Melendez v Parkchester Med. Servs., P.C., 76 AD3d 927 [1st Dept 2010]). To defeat summary judgment, the party opposing the motion must show that there is a material question(s) of fact that requires a trial (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; CitiFinancial Co. (DE) v McKinney, 27 AD3d 224, 226 [1st Dept 2006]).
Because plaintiff is a national bank, it is not barred by Business Corporation Law § 1312 (a) from bringing this action (12 USC 24, Fourth; Valley Nat. Bank v Sukhu Realty, Inc., 2009 NY Slip Op. 33228(U) [Sup. Ct, Queens County 2009]; cf. Banque Arabe Et Internationale D'Investissement v One Times Sq. Assoc. Ltd. Partnership, 193 AD2d 387 [1st Dept 1993] ["The instant mortgage foreclosure action is authorized notwithstanding that plaintiff, a foreign banking corporation that maintains a representative office in New York (Banking Law §§ 221-a, 221-b [3]), although properly registered(,) is unlicensed (citations omitted)."]; Commonwealth Bank & Trust Co. v Tioga Mills, 78 AD2d 953 [3rd Dept 1980] ["Foreign corporations, such as plaintiff, that are formed for banking purposes and carry on banking business in this State are expressly excluded from the application of the Business Corporation Law, except to the extent that the Banking Law provides otherwise (citation omitted)."]).
Defendants object to the form of the affidavit of plaintiff's vice president Robert Kochenthal. The affidavit is in the form of an acknowledgment before a notary public in New Jersey, and is certified by plaintiff's attorney as being in accordance with the laws for taking oaths and acknowledgments in the State of New Jersey, as permitted under CPLR 2309 (c). Furthermore, the affidavit complies with CPLR 3212 (b) in that Mr. Kochenthal states that he has personal knowledge of all facts stated. Finally, defendants did not show that they rejected the affidavit within two days of receiving it (CPLR 2101 [f]).
Contrary to defendants' contentions, Mr. Kochenthal's affidavit and the exhibits thereto make a prima facie showing of plaintiff's entitlement to summary judgment by establishing the existence of the note and guaranty, and the failure to make timely payment thereon, shifting the burden to defendants to raise an issue of fact (see First Interstate Credit Alliance, Inc. v Sokol, 179 AD2d 583, 584 ; Key Bank of Long Is. v Burns, 162 AD2d 501, 502 [2nd Dept 1990]; Conolog Corp. v P.R. Electronics Export, Inc., 140 AD2d 190, 191 [1st Dept 1988]). Mr. Kochenthal's statement that there is a principal unpaid balance under the loan agreement of $95,778.85 is plainly sufficient to make a prima facie showing of defendants' obligation under the note and guaranty (see General Bank v Mark II Imports Inc., 290 AD2d 240, 241 [1st Dept 2002]). Defendants have failed to raise an issue of fact to the contrary (see Mountainview Realty Associates v. Stark, 190 AD2d 602, 603 [1st Dept 1993]).
Accordingly, by this court's separate decision and order, summary judgment has been granted to plaintiff against defendants on the principal balance sought plus interest. However, as to plaintiff's seeking to recover its legal fees under the note and guaranty, a hearing is required to assess the reasonableness of the fees (TPZ Corp. v Winant Place Associates, 308 AD2d 577, 578 [2nd Dept 2003]) because plaintiff did not supply all the information required for this court to set an appropriate amount (see 542 East 14th Street LLC v Lee, 66 AD3d 18, 24 [1st Dept 2009]).
Dated: New York, New York
February 15, 2012RICHARD F. BRAUN, J.S.C.