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Laws-info.com » Cases » New York » Sup Ct, NY County » 2011 » General Elec. Capital Corp. v Miron Lbr. Co. Inc.
General Elec. Capital Corp. v Miron Lbr. Co. Inc.
State: New York
Court: Supreme Court
Docket No: 2011 NY Slip Op 31919(U)
Case Date: 07/08/2011
Plaintiff: General Elec. Capital Corp.
Defendant: Miron Lbr. Co. Inc.
Preview:General Elec. Capital Corp. v Miron Lbr. Co. Inc. 2011 NY Slip Op 31919(U) July 8, 2011 Supreme Court, New York County Docket Number: 650728/10 Judge: Charles E. Ramos Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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lNEDON711312011

SUPREME COURT OF THE STATE OF NEW YORK PRESENT:

- NEW YORK

COUNTY

LLa CrvLo 5
Justice
INDEX N O ,
MOTION DATE

PART

53

- v MOTION SEQ. NO. M O T I O N CAL. NO.

g03

The following papers, numbered 1 t o

Were read on this motion to/for
PAPERS NUMBERED

Notice of Motion/ Order to Show Cause Answering Affidavits Replying Affidavits

- Affidavits -

Exhibits

...

-

Exhibits

Cross-Motion:

r1 Yes

No

Upon the foregoing papers, it is ordered that this motion

JUL 13 2011
NEW YORK COUNTY CLERK'S OFFICE

I Dated:

I

$-'i3
1

z.11

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION - - _ _ - _ _ - - - - - _ _ - - - - - _ _ - - - - - - _ - - - - - - _X - - _ - - GENERAL ELECTRIC CAPITAL CORPORATION,
Plaintiff, Index No.: 650728/10 -againstMIRON LUMBER CO. I N C . , BERND MESSING,
DEREK MESSING and

FILED
Defendants.
X
NEW YORK COUNTY CLERK'S OFFICE

_I___-_-----__--_---________I____________-

HON. Charles Edward Ramos, J . S . C . :

Plaintiff, General Electric Capital Corporation ("Plaintiff" or "GE Capital") moves, pursuant to CPLR 3 2 1 2 , for summary judgment dismissing and striking defendants` counterclaim and affirmative defenses, respectively, and in support of its own claims for breach of contract, breach of guaranty, delinquency penalties, attorneys' fees, and r e l a t e d costsldisbursements. Defendants, Miron Lumber Co. Inc., Derek Messing and Bernd Messing (together, "Miron Lumber," "Miron,
oppose the motion.
I '

or the "Defendants"),

Summarv Judqment
The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate a n y material issues of fact as to the claim or claims at issue ( A l v a r e z v Prospect

Hospital, 68 NY2d 3 2 0 , 324 [1986]). F a i l u r e to make such a
showing requires denial of the motion, regardless of the

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sufficiency of the opposing papers (Winegrad v N e w York
University Medical Center, 64 NY2d 851, 853 [1985]).

Once the prima f a c i e showing has been made, the party

opposing a motion for summary judgment b e a r s the burden of "produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact" (Amatulli v Delhi
C o n s t r u c t i o n Corporation, 77 NY2d 525, 533 [1991])

.

Backqround This is an action involving a commercial loan and guaranty.

On June 9, 2009, the corporate parties entered into an agreement
(the "2009 Agreement") by which GE Capital provided financing to Miron Lumber or the purpose of Miron acquiring certain equipment. Pursuant to the 2009 Agreement's terms, GE was given

a security interest in the equipment (the "Collateral"), and

Miron agreed to pay GE Capital t h e sum of $820,306.08 in forty eight (48) consecutive monthly installments of $17,089.71. On June 9, 2009, the Collateral was delivered to M i r o n Lumber and it
began making monthly payments to GE Capital in accordance with
t h e schedule of payments.

Concurrent with the 2009 Agreement, the individual defendants executed a guaranty (the "2009 Guaranty") pursuant to which they jointly and severally agreed to guarantee all of the obligations of Miron Lumber to GE Capital contained in the 2009 Agreement. Miron made the required payments through October 2009

2

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before defaulting on their obligations in November 2009, by failing to tender a full payment.' Upon default, GE Capital elected, (as is their right, see 2009 Agreement at
Download 2011_31919.pdf

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