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Parimist Funding Corp. v. Suffolk Vascular Associates, PLLC

Other Lower Courts

January 30, 2008

Parimist Funding Corp., Plaintiff,
v.
Suffolk Vascular Associates, PLLC, Robert Pollina, M.D. and Paul Van Bemmelen, M.D., Defendants.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

OPINION

Stephen A. Bucaria, J.

This motion, by plaintiff Parimist Funding Corp., for an order pursuant to CPLR 3212 granting it summary judgment in specific amounts, or, in the alternative, an order granting it partial summary judgment with respect to liability, is denied; and the cross-motion, by defendants Suffolk Vascular Associates, PLLC and Robert Pollina, M.D, for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint against them isgranted; and the cross-motion, by defendant Paul Van Bemmelen, M.D., for, inter alia, an order pursuant to CPLR 3212 granting him summary judgment dismissing the complaint against him, or, in the alternative, an order pursuant to

PARIMIST FUNDING CORP. Index no. 021519/06

CPLR 603 severing the defendants' cross-claims for separate trial if plaintiff's motion is granted, is granted as provided herein.

This is an action to recover damages for breach of three lease agreements. Both the plaintiff lessor and the defendant lessees/guarantors seek summary judgment.

"On a motion for summary judgment pursuant to CPLR 3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." ( Sheppard-Mobley v King, 10 A.D.3d 70, 74, 2nd Dept., 2004, aff'd. as mod., 4 N.Y.3d 627 (2005), citing, Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324, 1986; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 1985). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers." ( Sheppard-Mobley v King, supra, at p. 74; Alvarez v Prospect Hosp., supra; Winegrad v New York Univ. Med. Ctr., supra. Once the movant's burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact. ( Alvarez v Prospect Hosp., supra, at p. 324). The evidence presented by the opponents of summary judgment must be accepted as true and they must be given the benefit of every reasonable inference. (see, Demishick v Community Housing Management Corp., 34 A.D.3d 518, 2nd Dept., 2006, citing Secof v Greens Condominium, 158 A.D.2d 591, 2nd Dept., 1990).

The pertinent facts are as follows:

The defendants Suffolk Vascular Associates and Drs. Pollina and Van Bemmelen entered into three 60-months leases with plaintiff Parimist Funding on or about February 5, 1997, January 25, 2001 and March 2, 2001 for medical and office equipment as well as office furniture. By their terms, those leases expired on February 4, 2002, January 24, 2006, and March 22, 2006, respectively.

The leases provided that the equipment belonged to the Lessor, as follows:

"Equipment to Remain Unattached to Real Property: Each item of equipment leased hereunder shall at all times remain the property of the Lessor and Lessee shall have no right, title or interest therein or thereto except as expressly set forth in the lease."

PARIMIST FUNDING CORP. Index no. 021519/06

The leases also obligated the defendant Lessees to return the property, as follows:

"Upon the termination in any manner whatever of the lease hereby granted or any extension thereof, the Lessee shall forthwith deliver, freight prepaid, the leased property to the Lessor or [sic] an address to be designated by Lessor, complete and in good order and condition, reasonable wear and tear alone excepted, and shall pay to the Lessor the full amount of rental due on it . . . ."

As for extensions, the leases all provided:

"Failure to Return Property As Extension of Lease: If, upon the expiration of the full term of this lease as provided for, the Lessee does not immediately return the leased property to the Lessor, and the Lessor does not request its return, then the leased property shall continue to be held and leased under and in accordance with the conditions in this agreement contained, and this agreement shall thereupon be extended indefinitely as to term, but thereafter either the Lessee or the Lessor upon thirty (30) days ...


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