Preview
FILED: NEW YORK COUNTY CLERK 04/19/2018 12:09 PM INDEX NO. 650546/2018
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 04/19/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------x
PNC BANK, NATIONAL ASSOCIATION, : Index No. 650546/2018
Plaintiff, :
-against- : AFFIRMATION
JANAS DENTAL PLLC, CHAMYAN LLC, :
NEAL L. AUERBACH and ALISA
AUERBACH, :
Defendants.
:
-----------------------------------X
IRA DANIEL TOKAYER, ESQ., an attorney admitted to
practice under the laws of this State, under penalty of perjury,
affirms as follows:
1. I am the attorney for the defendants in this
action. I submit this Affidavit in opposition to plaintiff's
motion for summary judgment. I am fully familiar with the facts
set forth herein.
2. Plaintiff's motion should be denied because
plaintiff has failed to submit proof in evidentiary form of the
defendants'
instruments underlying the motion or payment history
remedy"
that would entitle it to the "drastic of summary judgment
under the strict standards for such relief.
3. The standards for summary judgment are well-known.
As the court has stated:
[Summary judgment] is a drastic remedy which
should only be employed when there is no
doubt as to the absence of triable issues.
On a motion for summary judgment, the party
seeking judgment as a matter of law has the
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†â€
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burden of tendering evidentiary proof in a
form admissible at trial to show the absence
of triable issues of fact. The failure to
eliminate all material issues of fact results
in the denial of the motion, regardless of
the sufficiency of the opposing papers.
Pizzo-Juliano v. Southside Hosp., ., 129 A.D.3d 695, 696-97 (2d
Dept. 2015) (citations omitted). "The key to summary judgment
issue-determination."
resolution is issue-finding, rather than
Sillman v Twentieth Century-Fox Film Corp., ., 3 N.Y.2d 395, 404
(1957). .
4. To establish entitlement to summary judgment on an
instrument for the payment of money only, a plaintiff must submit
proof of the underlying instrument and the failure of the
defendant to make payment in accordance with the terms of that
instrument. Only once a plaintiff submits admissible evidence
establishing its prima facie case does the burden shift to the
defendant to establish the existence of a triable issue of fact
with respect to a bona fide defense. See Cadlerock Joint
Venture, L.P. v. Trombley, , 150 A.D.3d 957, 958-59 (2d Dept.
2017). If a plaintiff seeks to rely on business records for its
motion, a proper foundation for the admission of such records
must be provided by someone with personal knowledge of the
maker's business practices and procedures. See Citibank, N.A. v.
Cabrera, 130 A.D.3d 861 (2d Dept. 2015).
5. Here, plaintiff has failed to submit admissible
proof of the authenticity of the notes, guarantees and
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forbearance agreements upon which the motion at bar is predicated
defendants'
or of alleged failure to make payments in accordance
with the terms of the those instruments. Plaintiff relies
(" Jacob"
entirely on the testimony of one Matthew H. Jacob ("Jacob") and,
other than providing his name and title, plaintiff fails to
establish Jacob's duties and responsibilities or his personal
defendants'
knowledge concerning the instruments at issue,
payment history, or plaintiff's record keeping practices and
procedures.
6. Specifically, Jacob is not a signatory to any of
the documents upon which plaintiff relies and does not otherwise
claim to be involved in their making. (See Exs. A-G). Nor has
Jacob established personal familiarity with how such records are
maintained by plaintiff (TT 8, 9, 13, 14, 18, 20).
7. Jacobs also does not claim personal knowledge of
defendants'
payment history and submits absolutely no records
pertaining to such history. Jacob does not attest to the
existence of any such records, that he has reviewed such records
if they exist, and how such records, if any, are complied and
maintained (TT 10, 15, 22). Neither does Jacob provide details
of his bald and unsupported calculation of the total amounts
claims to be owed (TT 12, 17).
8. Courts have routinely denied summary judgment
under such circumstances. See, e.g., Aurora Loan Servs., LLC v.
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(1"
Komarovsky, , 151 A.D.3d 924 Dept. 2017) (bank failed to
demonstrate the admissibility of the records relied upon since
deponent did not attest that she was personally familiar with the
company's record-keeping practices and procedures); Cadlerock
Joint Venture, L.P. v. Trombley, , 150 A.D.3d 957, 959 (2d Dept.
2017 (because plaintiff's officer did not allege she was
personally familiar with the bank's record keeping practices and
procedures, plaintiff failed to lay a proper foundation for the
admission of records concerning the payment history under the
note; summary judgment should have been denied regardless of the
sufficiency of the opposition papers); HSBC Mortq. . Servs., Inc.
("
v. Royal, 142 A.D.3d 952, 954 (2d Dept. 2016) plaintiff failed
to lay a proper foundation for the admission of records
concerning the appellant's payment history and his assertions
inadmissible"
based on these records were inadmissible"); Citibank, N.A. v.
Cabrera, 130 A.D.3d 861 (2d Dept. 2015) (motion for summary
judgment, while unopposed, was properly denied as plaintiff
failed to demonstrate the admissibility of the records relied
upon by its affiant under the business records exception to the
rule).¹
hearsay
¹
Any attempt by plaintiff to cure the deficiencies in its
moving papers in reply would be unavailing. See Brown v. Smith,
(4"
85 A.D.3d 1648, 1649 Dept. 2011) (court did not consider
subsequently submitted testimony where defendant failed to meet
his initial burden of proof in the moving papers); Miqdol v. City
(1"
of New York, 291 A.D.2d 201 Dept. 2002) (affidavit submitted
(continued...)
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WHEREFORE, defendant respectfully requests that
plaintiff's motion be denied in its entirety.
Dated: New York, New York
Ap r i1 20, 2018
/s/
IRA DANIEL TOKAYER
(...continued)
with reply papers rejected since it sought to remedy basic
deficiencies in the moving papers rather than respond to
arguments in the opposition papers).
5 of 5
Preview
FILED: NEW YORK COUNTY CLERK 04/19/2018 12:09 PM INDEX NO. 650546/2018 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 04/19/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------x PNC BANK, NATIONAL ASSOCIATION, : Index No. 650546/2018 Plaintiff, : -against- : AFFIRMATION JANAS DENTAL PLLC, CHAMYAN LLC, : NEAL L. AUERBACH and ALISA AUERBACH, : Defendants. : -----------------------------------X IRA DANIEL TOKAYER, ESQ., an attorney admitted to practice under the laws of this State, under penalty of perjury, affirms as follows: 1. I am the attorney for the defendants in this action. I submit this Affidavit in opposition to plaintiff's motion for summary judgment. I am fully familiar with the facts set forth herein. 2. Plaintiff's motion should be denied because plaintiff has failed to submit proof in evidentiary form of the defendants' instruments underlying the motion or payment history remedy" that would entitle it to the "drastic of summary judgment under the strict standards for such relief. 3. The standards for summary judgment are well-known. As the court has stated: [Summary judgment] is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues. On a motion for summary judgment, the party seeking judgment as a matter of law has the 1 of 5 ††FILED: NEW YORK COUNTY CLERK 04/19/2018 12:09 PM INDEX NO. 650546/2018 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 04/19/2018 burden of tendering evidentiary proof in a form admissible at trial to show the absence of triable issues of fact. The failure to eliminate all material issues of fact results in the denial of the motion, regardless of the sufficiency of the opposing papers. Pizzo-Juliano v. Southside Hosp., ., 129 A.D.3d 695, 696-97 (2d Dept. 2015) (citations omitted). "The key to summary judgment issue-determination." resolution is issue-finding, rather than Sillman v Twentieth Century-Fox Film Corp., ., 3 N.Y.2d 395, 404 (1957). . 4. To establish entitlement to summary judgment on an instrument for the payment of money only, a plaintiff must submit proof of the underlying instrument and the failure of the defendant to make payment in accordance with the terms of that instrument. Only once a plaintiff submits admissible evidence establishing its prima facie case does the burden shift to the defendant to establish the existence of a triable issue of fact with respect to a bona fide defense. See Cadlerock Joint Venture, L.P. v. Trombley, , 150 A.D.3d 957, 958-59 (2d Dept. 2017). If a plaintiff seeks to rely on business records for its motion, a proper foundation for the admission of such records must be provided by someone with personal knowledge of the maker's business practices and procedures. See Citibank, N.A. v. Cabrera, 130 A.D.3d 861 (2d Dept. 2015). 5. Here, plaintiff has failed to submit admissible proof of the authenticity of the notes, guarantees and 2 of 5 FILED: NEW YORK COUNTY CLERK 04/19/2018 12:09 PM INDEX NO. 650546/2018 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 04/19/2018 forbearance agreements upon which the motion at bar is predicated defendants' or of alleged failure to make payments in accordance with the terms of the those instruments. Plaintiff relies (" Jacob" entirely on the testimony of one Matthew H. Jacob ("Jacob") and, other than providing his name and title, plaintiff fails to establish Jacob's duties and responsibilities or his personal defendants' knowledge concerning the instruments at issue, payment history, or plaintiff's record keeping practices and procedures. 6. Specifically, Jacob is not a signatory to any of the documents upon which plaintiff relies and does not otherwise claim to be involved in their making. (See Exs. A-G). Nor has Jacob established personal familiarity with how such records are maintained by plaintiff (TT 8, 9, 13, 14, 18, 20). 7. Jacobs also does not claim personal knowledge of defendants' payment history and submits absolutely no records pertaining to such history. Jacob does not attest to the existence of any such records, that he has reviewed such records if they exist, and how such records, if any, are complied and maintained (TT 10, 15, 22). Neither does Jacob provide details of his bald and unsupported calculation of the total amounts claims to be owed (TT 12, 17). 8. Courts have routinely denied summary judgment under such circumstances. See, e.g., Aurora Loan Servs., LLC v. 3 of 5 FILED: NEW YORK COUNTY CLERK 04/19/2018 12:09 PM INDEX NO. 650546/2018 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 04/19/2018 (1" Komarovsky, , 151 A.D.3d 924 Dept. 2017) (bank failed to demonstrate the admissibility of the records relied upon since deponent did not attest that she was personally familiar with the company's record-keeping practices and procedures); Cadlerock Joint Venture, L.P. v. Trombley, , 150 A.D.3d 957, 959 (2d Dept. 2017 (because plaintiff's officer did not allege she was personally familiar with the bank's record keeping practices and procedures, plaintiff failed to lay a proper foundation for the admission of records concerning the payment history under the note; summary judgment should have been denied regardless of the sufficiency of the opposition papers); HSBC Mortq. . Servs., Inc. (" v. Royal, 142 A.D.3d 952, 954 (2d Dept. 2016) plaintiff failed to lay a proper foundation for the admission of records concerning the appellant's payment history and his assertions inadmissible" based on these records were inadmissible"); Citibank, N.A. v. Cabrera, 130 A.D.3d 861 (2d Dept. 2015) (motion for summary judgment, while unopposed, was properly denied as plaintiff failed to demonstrate the admissibility of the records relied upon by its affiant under the business records exception to the rule).¹ hearsay ¹ Any attempt by plaintiff to cure the deficiencies in its moving papers in reply would be unavailing. See Brown v. Smith, (4" 85 A.D.3d 1648, 1649 Dept. 2011) (court did not consider subsequently submitted testimony where defendant failed to meet his initial burden of proof in the moving papers); Miqdol v. City (1" of New York, 291 A.D.2d 201 Dept. 2002) (affidavit submitted (continued...) 4 of 5 FILED: NEW YORK COUNTY CLERK 04/19/2018 12:09 PM INDEX NO. 650546/2018 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 04/19/2018 WHEREFORE, defendant respectfully requests that plaintiff's motion be denied in its entirety. Dated: New York, New York Ap r i1 20, 2018 /s/ IRA DANIEL TOKAYER (...continued) with reply papers rejected since it sought to remedy basic deficiencies in the moving papers rather than respond to arguments in the opposition papers). 5 of 5