This case is not published in a printed volume and its disposition appears in a table in the reporter.
Lauterbach, Garfinkel Damast Hollander, LLP Attorneys for plaintiff By David J. Wolkenstein, Esq.
Andrew J. Spinnell, Esq. Attorney for defendants.
Manuel J. Mendez, J.
Upon a reading of the foregoing cited papers on this motion and cross motion for summary judgment it is the decision and order of this court that the motion is denied as to defendants First Class and Levy and granted without opposition as to defendant Fine Dining Associates LLC. The cross motion is denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Alle Processing Corporation ( hereinafter "Plaintiff") is a wholesale supplier of meat and poultry. Pursuant to an agreement entered into in January 1996 Plaintiff agreed to supply First Class Restaurant Corp., d/b/a Haikara Grill ( hereinafter "First Class") with meat products. Concomitant with the signing of the agreement and as part of a credit application, defendant Steven Levy (hereinafter "Levy"), president of the corporation, signed a personal Guaranty of the payment obligations for the goods, meat and poultry supplied by plaintiff to First Class. The personal guaranty stated as follows:
"I (we) Steven Levy... In consideration of your extending credit at my( our ) request to ...hereinafter referred to as "the company" of which I (we) am (are) president, hereby personally guarantee to you the unconditional and direct payment of any and all obligations of the company and I (we) hereby agree to bind myself (ourselves, jointly and severally) to pay to you upon demand any sum which may become due to you by the company whenever the company shall fail to pay the same and whether or not you have exhausted your remedies against the company. It is understood that this guaranty shall be a guaranty and indemnity for such indebtedness of the company. I (we) do hereby waive notice of default, non-payment and notice thereof and consent to any modification or renewal of the credit agreement hereby guaranteed."
Plaintiff extended credit to First Class and provided meat and poultry products from January 1996 until September 2005. Plaintiff mailed invoices to "Haikara Grill" which First Class paid on a regular basis. During the period July 1, 2005 through September 19, 2005 Plaintiff alleges that it delivered products to First Class for the reasonable value and agreed price of $26, 559.32 which goods were accepted and for which payment has not been received.
Plaintiff started an action in Supreme Court New York County under index No. 604251/2005, seeking to recover $26,559.32 for the delivered products. Issue was joined in that action by the service of an answer wherein First Class and Levy made a General Denial to the allegations and asserted three Affirmative defenses. Following joinder of issue Plaintiff moved for summary judgment alleging the same grounds it now alleges in this motion. First Class and Levy opposed the motion with an affidavit from their attorney Terry L. Meltzer, Esq., and documentary evidence. In his affidavit Mr. Meltzer stated, in essence, that First Class was not liable for payment of the products delivered and neither was Levy, because "in April 2004 approximately one and a half years before the invoices which are the basis of this lawsuit and before any dispute arose between the parties, Fine Dining Associates, a New York corporation, commenced doing business as "Haikara Grill" at 206 East 63rd. Street. Mr. Levy's personal Guaranty was part of the credit application and was for goods sold and delivered to defendant First Class Restaurant Corp., only. Mr. Levy's personal guaranty would not apply to any deliveries made to another corporation." [See affirmation in opposition to plaintiff's motion for summary judgment in Supreme Court action].
By decision and order dated June 26, 2006 the Supreme Court denied the motion against defendant First Class finding " it cannot be determined at this juncture and in the absence of discovery whether the named defendant, First Class Restaurant Corp., d/b/a Haikara Grill is liable as a matter of law.... Although defendant failed to challenge any specific invoice and alleged partial payment, defendants' general denial coupled with their opposition papers, sufficiently puts in issue the question of delivery or non-delivery of goods to the named defendant. Therefore summary judgment against defendant First Class Restaurant Corp., d/b/a Haikara Grill cannot be granted at this juncture." The Court also denied the motion against defendant Levy, finding that defendants have raised an issue of fact as to whether Mr. Levy's written guaranty applies to the invoices attached to the verified complaint. Since it cannot be determined whether the subject invoices reflect deliveries made to Haikara ...