The opinion
Bates Holdings II LLC v ZB Prospect Realty, LLC
2024 NY Slip Op 34366(U)
December 16, 2024
Supreme Court, Kings County
Docket Number: Index No. 509047/2024
Judge: Leon Ruchelsman
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
FILED: KINGS COUNTY CLERK 12/16/2024 09:25 AM INDEX NO. 509047/2024
NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 12/16/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS ~ CIVIL ~ERM: CbkMERCIAL $
------------------ - --- --- -- --------- X
BATES HOLDINGS II LLC, ~~ting .by and through
its servicer. Field Point $ervic;Lng, LLC, ·
Plaintiff, Dicision .and order
Inde~ No~ 5090A7/2024
- against -
ZB PROSPECT REALTY, LLC, ZALMEN
BIEDERMAN, CI TY OF NEW YORK
ENVIRONMENTAL CONTROL BOARD, NEW
YORK CITY DEPARTMENT OF FINANCE, NEW
YORK STATE DEPARTMENT OF TAXATION
AND FINANCE, U.S. SMALL BUSINESS
ADMINISTRATION, and "JOHN DOE il" through
"JOHN DOE #12," the last twelve names being
fictitious and unknown to the Plaintiff, the
persons or parties, i f any, having or ciaiming
an interest in. or lieh upon the premises, .
described in th~ Complaint, ··
b~fendants, December 16, 2024
-------- . .- - - : --- .· ·-----·· - ·- -- . ---·- - ·----1·X
PRESENT: HON. LEON · RUCHELSMAN Motion Seq. #3
The plaintiff has moyeq seeking a de:fault judgement or
alternatively summary judgement. The defendants :have opposed th~
motion. Papers were submitted by the pa.r ties and .arguments held.
After rev i ew i ng' al.l the. a r gurn.erit~ this co'. urt ri<.JW makes the
following determi nation.
As recorded in a priCir qrder, on November 21, 20 1 9 the
d,e-.f endants e~ecut.e d a mortgage and. ~ccompanying agreements in the
amollni:. of $ 8, 25 .0 , 000. The mortgage arid note were assigned to the
plaintiff .o n October 4, 2021. The mortga:ge and note con.c~rned
prope.rty loc.?ited at 846 Prospect Place in Kings County. The
plaintiff all.e ges a default occurrE:?d whe.ri the . defendants faiiec:i
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FILED: KINGS COUNTY CLERK 12/16/2024 09:25 AM INDEX NO. 509047/2024
NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 12/16/2024
to make · any payments in October 2020. Altbpugh Stirn~ payments
were .made .after that date Joll.o wing an attempt tq globally
resolve th.e outstanding debts, .a s of the Jiling of the summons
and comp)_aint the defendants owed $7,481,592. '58 . plus intere·st,,
la t e cpat.ges and other fees.
The plaintiff
. .
has now moved seeking essehtialyl summary
.
judg.e tnent. As noted, the nrotlon is opposed.
Conclusions of Law
Where the material facts at :i.ss:ue in; a case are in dispute
summa.ry judgment cannot be gt;;i.rited (Zuckerman v. City of New
York, 4 9 N'YS2d 557, 427 NYS2d 595 ( 198·0] ) . Generally, it is for
the, jury, the trie;r- .o f fa.c t. t .o determine the legal cause of any
injury, however, whez:e only one conclusion may be drawn 'from t.he
facts then the qu~stion of lega l cause may be de6ided by the
trial court as a mat.ter of law (Marino v. Jamison, 189 AD3d 1021,
lJ~ NYS3d 324 [2d Dept.j 2021}, Thu~, tQ succeed on .a motion for
summary judgem¢n:t it is necessary for the movant to make a pr i ma
facie showing of an entitlement as a matter of law by -offering
evidence demonstrating the absen.c e 9f any material issue of fact
{Wi n egrad v. New York Uni VPrsi ty Medical Center, . '64 NY2d 851, 487
NYS2d 316 [1985 j ) . Moreover, a movartt cannot succeed upon a:
motion .for surnrna;ry j .udgement by pointing •to gaps in the opponents
case because the moving party must affirm9-tively present evidence
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demonstrating the lack ¢f any questions of fa-ct (Velas9t1ez v.
Gomez, 44 AD3d 649, 843 NYS2d 368 [2d Dep~., 2007 .)).
Ccnqerning establishing any default pr nonpayment, it is
well ~ettl.~d that "a proper foundation for the admission of a
business re.c ord must be provided by someop-e with personal
knowledge of the maker's business pra~tic~~ and pzocedures"
(Citibank N.A. v. Cabrera, 130 AD3d 8E>I, 14 .NYS3d 420 [2d Dept.,
2015]}. Thus, where a party introduces evidence ;of the.. existence
of loans, personal guarantees and the defendant's failure tq make
payments according to. the terms of the instruments then .summary
judgement is proper (see., JPMorgan Chase Bank N.A., v. Bauer, 92
AD3d 6Al, 938 NYS2d 190 [2d Dept., 2012]) :. In this case, as
noted; the plaintiff submitted the affida\rit of Seah Barry who
stated that he reviewed the plaintiff's re.cords in connection
with the loans extended in this case. He further stated that all
the documents he review~d ~ere maintained 4n the regular course
of busin.e .s s and all s.u ch .records were mac:;ie n!;:lar their occurrence
with someone who had knowledge a.t that time and that the
plaihtiff ' .s standard practice is to k,aE:p suc.h records in the
ord;Lnary course of business (see, Affidavit -of Sean Barry, CJl4
[NYSCEF Doc, No. 21] ). Thus, the plaintiff has established the
admissibility of the records relied upon :sin.ce Mr. Barry had
kncwl~dg~ and familiarity of the plaiptiff's practices and
procedµres {™, Cadlerock Joint Venture L.P. v, Trombley, 150
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AD3q 957, 54 NYS3d 127 [2cl Dept., 2017]). i Further, it is true
that summary judgement is improper where ;the bus i ness re~ords
reli ed upon by the employee have not been; submitted for review
(see, Real Estate Mortgage Network Inc., v. Mason, 217 AD3d 796,
191 NYS3d 141 [2d Dept., 2023]). . However:, where all such
documents are submitted theri the employee may rely upon them.
Thus, since in this case Mr. Batry reviewbd all the documents and
'
su.ch documents hav$ bee.n submitted for reviewi th,ere are no
questions r .a ised cqncerning the reliabiiity o.f Mr. i3a.r ry' s
affidavit.
Furthe:r:-more, as already noted in a. companion case, there is
no me.tit to the argument tt)e plain:tiff fai l ed to estab.l isti a
pr.i ma· facie case of default because there a:re no specific
docum~nts establishing non---payment. The mere fact there are. no
documents sup.porting non.- payment does not me.an the plaintiff
based the prqof of non-payment upo.n unidentifi~d business
.re.c ords. 'r.h e non-payment of an amount du:e is supported l:>y the
fact.. all th~ doc:uments, .clemqnstrate a payrn:e nt was ¢iue a .nd th.e .re is
ho evidence any payment was made. A non-payment of a debt due,
something that can properly be characte:t i:zed a·.s .. a non-action, may
be proven py an examination o.f all the documents and testimony
that no payment occurred .. Iri Welis Fargo:. Bank, ·National.
. .
Association. et al., v~ Newhouse, 218 AD:3:d 1117, 192 NYS3d .'.393
[4 th Dept., 2023] the cou.r t characterize·d .the .e vidence necessary
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as "affidavit o-f nonpayment" (id). Indeed, the plaintiff's
evidence submitted does establish prima: facie evidence of hoi1-
payment.
Therefore, the rnotion seeking summary judge~ent that there
are no issues of fact the def enda.nt' s are· in def.a ul t for the
.a.m ounts outlined in Mr. Bar.r y' s a.f fidaVit i.s g:ranted,
So orde.r ed.
.E NTER:
DA-TEb: Decembe.r 16, 2-0 24
Brooklyn N.Y. Hon. Leon Ruchels.man
JSC
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