Preview
INDEX NO. 650319/2014
FILED: NEW YORK COUNTY CLERK 12/11/2014 04:54 PM
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 12/11/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
925D REALTY LLC,
Index No. 650319/2014
Plaintiff,
AFFIDAVIT OF MERIT IN
- against - SUPPORT OF MOTION FOR
SUMMARY JUDGMENT
VILES CONTRACTING CORP. and FERNANDO
VIDAL,
Defendants.
STATE OF NEW YORK )
1 SS.t
COUNTY OF NEW YORK _)
ARNOLD SIMON, being duly sworn, deposes and says:
1 I am the president of Realty Holding A.C. Corp., the manager of 925 Realty LLC,
which the sole member of plaintiff 925D Realty LLC (“Plaintiff”), and I am fully familiar with
the facts and circumstances set forth below. I respectfully submit is affidavit in support of
Plaintiff's motion for summary judgment against defendants Viles Contracting Corp. (“Viles”)
and Fernando Vidal (“Vidal”) (collectively, “Defendants’) based on Defendants’ indisputable
failure to make payment, respectively, on promissory notes signed by Viles, and related personal
guarantees signed by Vidal, resulting in liability to Plaintiff as a matter of law.
FACTS RELEVANT TO EACH CAUSE OF ACTION
The August 2012 Loan
2. On August 27, 2012, Plaintiff loaned Viles the sum of $75,000.00. In exchange
for its receipt of the money from Plaintiff, Viles executed and delivered to Plaintiff a “Demand
Promissory Note” for value received in the amount of $75,000.00, dated as of August 27, 2012
(the “August 2012 Promissory Note”, a copy of which is annexed as Exhibit A).
3 Paragraph 1 of the August 2012 Promissory Note unequivocally states that Viles
promised to repay Plaintiff the principal sum of $75,000.00, together with interest on such
principal sum at the rate of fifteen percent (15%) per annum, on demand.
4. Paragraph 3 of the August 2012 Promissory Note further provides that in the
event Viles defaults in making payment after demand therefor, (i) the August 2012 Promissory
Note will thereafter bear interest at the lesser of twenty-four (24%) percent per annum or the then
highest rate permitted by applicable law, and (ii) Viles will be obligated to pay all costs and
expenses incurred by Plaintiff in connection with enforcing the August 2012 Promissory Note,
including, without limitation, attorneys’ fees, disbursements and court costs.
5 Paragraph 7 of the August 2012 Promissory Note contains a merger clause
precluding oral modification of the August 2012 Promissory Note, as follows:
“This note may not be modified orally, and shall be governed,
construed and interpreted under the internal laws of the State of
New York.”
6 Pursuant to Paragraph 10 of the August 2012 Promissory Note, Vidal, as the sole
shareholder, director and president of Viles, personally and individually guaranteed Viles’
performance under the August 2012 Promissory Note. To that end, Vidal signed a separate
guaranty agreement dated as of August 27, 2012 (the “August 2012 Guaranty”, a copy of which
is annexed hereto as Exhibit B). Pursuant to paragraph 1 of the August 2012 Guaranty, Vidal
agreed to unconditionally guaranty to Plaintiff:
“... the full and prompt payment when due of all sums which shall become due and
owing from Borrower to Lender pursuant to the [August 2012 Promissory Note].
If Borrower shall default under the [August 2012 Promissory Note], whether or not
a notice of default has been served upon Borrower, Guarantor shall thereupon pay
all sums due to Lender thereunder in lawful money of the United States of
America.”
7 Pursuant to paragraph 2 of the August 2012 Guaranty, Vidal agreed to absolutely
and unconditionally guaranty to Plaintiff:
“.. payment, and not merely of collection, without regard to the regularity, validity
or enforceability of the [August 2012 Promissory Note]. The liability of Guarantor
hereunder is independent of the liability of Borrower under the [August 2012
Promissory Note] and is exclusive and independent of any security for or other
guaranty of the [August 2012 Promissory Note], if any. Upon any default in
payment pursuant to the [August 2012 Promissory Note], Lender may, at his option,
proceed directly against Guarantor in a separate action or actions, with or without
proceeding against Borrower or any other party, or foreclosing upon, selling or
otherwise disposing of or collecting any property or other collateral, if any, which
may secure payment of the [August 2012 Promissory Note].”
8 Finally, pursuant to paragraph 5 of the August 2012 Guaranty, Vidal agreed to
unconditionally guaranty to pay Plaintiff all attorneys’ fees and all other costs and expenses
incurred by Plaintiff in enforcing the terms of the August 2012 Guaranty, including those
incurred in any action or proceeding arising out of or relating to the August 2012 Guaranty.
9 By letter dated July 17, 2013 (annexed as Exhibit C hereto with proof of mailing),
which was forwarded by Plaintiff to Viles and Vidal via personal in-hand delivery and Federal
Express Mail, Plaintiff demanded payment from (i) Viles of the entire principal amount of the
August 2012 Promissory Note, together with all interest accrued thereon, and (ii) from Vidal
under the August 2012 Guaranty. To date, Viles and Vidal have each respectively failed pay any
of the sums due under the August 2012 Promissory Note or the August 2012 Guaranty.
The April 2013 Loa
10. On April 17, 2013, Plaintiff loaned Viles the additional sum of $25,875.00. In
exchange for its receipt of this money from Plaintiff, Viles executed and delivered to Plaintiff a
“Demand Promissory Note” for value received in the amount of $25,875.00, dated as of April
17, 2013 (the “April 2013 Promissory Note”, a copy of which is annexed as Exhibit D).
11. Paragraph | the April 2013 Promissory Note unequivocally states that Viles
promised to pay Plaintiff the principal sum of $25,875.00, together with interest on such
principal sum at the rate of fifteen percent (15%) per annum, on demand.
12. Paragraph 3 of the April 2013 Promissory Note further provides that in the event
Viles defaults in making payment on demand, (i) the April 2013 Promissory Note will thereafter
bear interest at the lesser of twenty-four (24%) percent per annum or the then highest rate
permitted by applicable law, and (ii) Viles shall be obligated to pay all costs and expenses
incurred by Plaintiff in connection with enforcing the April 2013 Promissory Note, including,
without limitation, attorneys’ fees, disbursements and court costs.
13. Paragraph 7 of the April 2013 Promissory Note contains a merger clause
precluding oral modification of the April 2013 Promissory Note, as follows:
“This note may not be modified orally, and shall be governed,
construed and interpreted under the internal laws of the State of
New York.”
14. Pursuant to Paragraph 10 of the April 2013 Promissory Note, Vidal, as the sole
shareholder, director and president of Viles, personally and individually guaranteed Viles’
performance under the April 2013 Promissory Note. To that end, Vidal signed a separate
guaranty agreement dated as of April 17, 2013 (the “April 2013 Guaranty”, a copy of which is
annexed hereto as Exhibit E), Pursuant to paragraph 1 of the April 2013 Guaranty, Vidal agreed
to unconditionally guaranty to Plaintiff:
“... the full and prompt payment when due of all sums which shall become due and
owing from Borrower to Lender pursuant to the [April 2013 Promissory Note]. If
Borrower shall default under the [April 2013 Promissory Note], whether or not a
notice of default has been served upon Borrower, Guarantor shall thereupon pay all
sums due to Lender thereunder in lawful money of the United States of America.”
15. Pursuant to paragraph 2 of the April 2013 Guaranty, Vidal agreed to absolutely
and unconditionally guaranty to Plaintiff:
“.. payment, and not merely of collection, without regard to the regularity, validity
or enforceability of the [April 2013 Promissory Note]. The liability of Guarantor
hereunder is independent of the liability of Borrower under the [April 2013
Promissory Note] and is exclusive and independent of any security for or other
guaranty of the [April 2013 Promissory Note], if any. Upon any default in payment
pursuant to the [April 2013 Promissory Note], Lender may, at his option, proceed
directly against Guarantor in a separate action or actions, with or without
proceeding against Borrower or any other party, or foreclosing upon, selling or
otherwise disposing of or collecting any property or other collateral, if any, which
may secure payment of the [April 2013 Promissory Note].”
16. Finally, pursuant to paragraph 5 of the April 2013 Guaranty, Vidal agreed to
unconditionally guaranty to pay Plaintiff all attorneys’ fees and all other costs and expenses
incurred by Plaintiff in enforcing the terms of the April 2013 Guaranty, including those incurred
in any action or proceeding arising out of or relating to the April 2013 Guaranty.
17. By letter dated July 17, 2013 (annexed as Exhibit F hereto with proof of mailing),
which was forwarded by Plaintiff to Viles and Vidal via personal in-hand delivery and Federal
Express Mail, Plaintiff demanded payment from (i) Viles of the entire principal amount of the
April 2013 Promissory Note, together with all interest accrued thereon, and (ii) Vidal under the
April 2013 Guaranty. To date, Viles and Vidal have each respectively failed pay any of the sums
due under the April 2013 Promissory Note or the April 2013 Guaranty.
-continued on the next page-
CONCLUSION
18. Accordingly, and for the reasons set forth in the accompanying affidavit of
Howard Grun and in the accompanying memorandum of law, Plaintiff respectfully requests that
this Court enter an order granting Plaintiff's motion in its entirety and awarding Plaintiff such
other and further relief as the Court deems just and proper.
Qu Vai inne.
ARNOLD SIMON
Sworn to before me this
l day of December, 2014
s
Notary Ptiblic
DIANA AMALFITANO.
Notary Public of New York
No, 01AM4821225
Qualified in Queens Count
Co mmission Expires April 30, 2! 6 tr
Preview
INDEX NO. 650319/2014 FILED: NEW YORK COUNTY CLERK 12/11/2014 04:54 PM NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 12/11/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK 925D REALTY LLC, Index No. 650319/2014 Plaintiff, AFFIDAVIT OF MERIT IN - against - SUPPORT OF MOTION FOR SUMMARY JUDGMENT VILES CONTRACTING CORP. and FERNANDO VIDAL, Defendants. STATE OF NEW YORK ) 1 SS.t COUNTY OF NEW YORK _) ARNOLD SIMON, being duly sworn, deposes and says: 1 I am the president of Realty Holding A.C. Corp., the manager of 925 Realty LLC, which the sole member of plaintiff 925D Realty LLC (“Plaintiff”), and I am fully familiar with the facts and circumstances set forth below. I respectfully submit is affidavit in support of Plaintiff's motion for summary judgment against defendants Viles Contracting Corp. (“Viles”) and Fernando Vidal (“Vidal”) (collectively, “Defendants’) based on Defendants’ indisputable failure to make payment, respectively, on promissory notes signed by Viles, and related personal guarantees signed by Vidal, resulting in liability to Plaintiff as a matter of law. FACTS RELEVANT TO EACH CAUSE OF ACTION The August 2012 Loan 2. On August 27, 2012, Plaintiff loaned Viles the sum of $75,000.00. In exchange for its receipt of the money from Plaintiff, Viles executed and delivered to Plaintiff a “Demand Promissory Note” for value received in the amount of $75,000.00, dated as of August 27, 2012 (the “August 2012 Promissory Note”, a copy of which is annexed as Exhibit A). 3 Paragraph 1 of the August 2012 Promissory Note unequivocally states that Viles promised to repay Plaintiff the principal sum of $75,000.00, together with interest on such principal sum at the rate of fifteen percent (15%) per annum, on demand. 4. Paragraph 3 of the August 2012 Promissory Note further provides that in the event Viles defaults in making payment after demand therefor, (i) the August 2012 Promissory Note will thereafter bear interest at the lesser of twenty-four (24%) percent per annum or the then highest rate permitted by applicable law, and (ii) Viles will be obligated to pay all costs and expenses incurred by Plaintiff in connection with enforcing the August 2012 Promissory Note, including, without limitation, attorneys’ fees, disbursements and court costs. 5 Paragraph 7 of the August 2012 Promissory Note contains a merger clause precluding oral modification of the August 2012 Promissory Note, as follows: “This note may not be modified orally, and shall be governed, construed and interpreted under the internal laws of the State of New York.” 6 Pursuant to Paragraph 10 of the August 2012 Promissory Note, Vidal, as the sole shareholder, director and president of Viles, personally and individually guaranteed Viles’ performance under the August 2012 Promissory Note. To that end, Vidal signed a separate guaranty agreement dated as of August 27, 2012 (the “August 2012 Guaranty”, a copy of which is annexed hereto as Exhibit B). Pursuant to paragraph 1 of the August 2012 Guaranty, Vidal agreed to unconditionally guaranty to Plaintiff: “... the full and prompt payment when due of all sums which shall become due and owing from Borrower to Lender pursuant to the [August 2012 Promissory Note]. If Borrower shall default under the [August 2012 Promissory Note], whether or not a notice of default has been served upon Borrower, Guarantor shall thereupon pay all sums due to Lender thereunder in lawful money of the United States of America.” 7 Pursuant to paragraph 2 of the August 2012 Guaranty, Vidal agreed to absolutely and unconditionally guaranty to Plaintiff: “.. payment, and not merely of collection, without regard to the regularity, validity or enforceability of the [August 2012 Promissory Note]. The liability of Guarantor hereunder is independent of the liability of Borrower under the [August 2012 Promissory Note] and is exclusive and independent of any security for or other guaranty of the [August 2012 Promissory Note], if any. Upon any default in payment pursuant to the [August 2012 Promissory Note], Lender may, at his option, proceed directly against Guarantor in a separate action or actions, with or without proceeding against Borrower or any other party, or foreclosing upon, selling or otherwise disposing of or collecting any property or other collateral, if any, which may secure payment of the [August 2012 Promissory Note].” 8 Finally, pursuant to paragraph 5 of the August 2012 Guaranty, Vidal agreed to unconditionally guaranty to pay Plaintiff all attorneys’ fees and all other costs and expenses incurred by Plaintiff in enforcing the terms of the August 2012 Guaranty, including those incurred in any action or proceeding arising out of or relating to the August 2012 Guaranty. 9 By letter dated July 17, 2013 (annexed as Exhibit C hereto with proof of mailing), which was forwarded by Plaintiff to Viles and Vidal via personal in-hand delivery and Federal Express Mail, Plaintiff demanded payment from (i) Viles of the entire principal amount of the August 2012 Promissory Note, together with all interest accrued thereon, and (ii) from Vidal under the August 2012 Guaranty. To date, Viles and Vidal have each respectively failed pay any of the sums due under the August 2012 Promissory Note or the August 2012 Guaranty. The April 2013 Loa 10. On April 17, 2013, Plaintiff loaned Viles the additional sum of $25,875.00. In exchange for its receipt of this money from Plaintiff, Viles executed and delivered to Plaintiff a “Demand Promissory Note” for value received in the amount of $25,875.00, dated as of April 17, 2013 (the “April 2013 Promissory Note”, a copy of which is annexed as Exhibit D). 11. Paragraph | the April 2013 Promissory Note unequivocally states that Viles promised to pay Plaintiff the principal sum of $25,875.00, together with interest on such principal sum at the rate of fifteen percent (15%) per annum, on demand. 12. Paragraph 3 of the April 2013 Promissory Note further provides that in the event Viles defaults in making payment on demand, (i) the April 2013 Promissory Note will thereafter bear interest at the lesser of twenty-four (24%) percent per annum or the then highest rate permitted by applicable law, and (ii) Viles shall be obligated to pay all costs and expenses incurred by Plaintiff in connection with enforcing the April 2013 Promissory Note, including, without limitation, attorneys’ fees, disbursements and court costs. 13. Paragraph 7 of the April 2013 Promissory Note contains a merger clause precluding oral modification of the April 2013 Promissory Note, as follows: “This note may not be modified orally, and shall be governed, construed and interpreted under the internal laws of the State of New York.” 14. Pursuant to Paragraph 10 of the April 2013 Promissory Note, Vidal, as the sole shareholder, director and president of Viles, personally and individually guaranteed Viles’ performance under the April 2013 Promissory Note. To that end, Vidal signed a separate guaranty agreement dated as of April 17, 2013 (the “April 2013 Guaranty”, a copy of which is annexed hereto as Exhibit E), Pursuant to paragraph 1 of the April 2013 Guaranty, Vidal agreed to unconditionally guaranty to Plaintiff: “... the full and prompt payment when due of all sums which shall become due and owing from Borrower to Lender pursuant to the [April 2013 Promissory Note]. If Borrower shall default under the [April 2013 Promissory Note], whether or not a notice of default has been served upon Borrower, Guarantor shall thereupon pay all sums due to Lender thereunder in lawful money of the United States of America.” 15. Pursuant to paragraph 2 of the April 2013 Guaranty, Vidal agreed to absolutely and unconditionally guaranty to Plaintiff: “.. payment, and not merely of collection, without regard to the regularity, validity or enforceability of the [April 2013 Promissory Note]. The liability of Guarantor hereunder is independent of the liability of Borrower under the [April 2013 Promissory Note] and is exclusive and independent of any security for or other guaranty of the [April 2013 Promissory Note], if any. Upon any default in payment pursuant to the [April 2013 Promissory Note], Lender may, at his option, proceed directly against Guarantor in a separate action or actions, with or without proceeding against Borrower or any other party, or foreclosing upon, selling or otherwise disposing of or collecting any property or other collateral, if any, which may secure payment of the [April 2013 Promissory Note].” 16. Finally, pursuant to paragraph 5 of the April 2013 Guaranty, Vidal agreed to unconditionally guaranty to pay Plaintiff all attorneys’ fees and all other costs and expenses incurred by Plaintiff in enforcing the terms of the April 2013 Guaranty, including those incurred in any action or proceeding arising out of or relating to the April 2013 Guaranty. 17. By letter dated July 17, 2013 (annexed as Exhibit F hereto with proof of mailing), which was forwarded by Plaintiff to Viles and Vidal via personal in-hand delivery and Federal Express Mail, Plaintiff demanded payment from (i) Viles of the entire principal amount of the April 2013 Promissory Note, together with all interest accrued thereon, and (ii) Vidal under the April 2013 Guaranty. To date, Viles and Vidal have each respectively failed pay any of the sums due under the April 2013 Promissory Note or the April 2013 Guaranty. -continued on the next page- CONCLUSION 18. Accordingly, and for the reasons set forth in the accompanying affidavit of Howard Grun and in the accompanying memorandum of law, Plaintiff respectfully requests that this Court enter an order granting Plaintiff's motion in its entirety and awarding Plaintiff such other and further relief as the Court deems just and proper. Qu Vai inne. ARNOLD SIMON Sworn to before me this l day of December, 2014 s Notary Ptiblic DIANA AMALFITANO. Notary Public of New York No, 01AM4821225 Qualified in Queens Count Co mmission Expires April 30, 2! 6 tr