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Performance Freight, Inc. v. United Collective Corp.

Supreme Court, New York County

April 3, 2013


Unpublished Opinion

Motion Date 05/18/12.

DEBRA A. JAMES, Justice.

The following papers, numbered 1 to 6 were read on this motion to vacate default and deny summary judgment.


Notice of Motion/Order to Show Cause -Affidavits -Exhibits.....................1, 2, 3

Answering Affidavits - Exhibits................................

Replying Affidavits - Exhibits...................................

The court shall grant plaintiff's motion to vacate its default in appearing on the previous motion by defendants Arnold Simon and cross motion by Star Funding (Motion Sequence No. 2, Order dated December 6, 2011, entered on December 14, 2011), and upon considering those motions on their merits including plaintiff's opposition thereto, the court shall grant summary judgment on the merits to the appearing defendants.

With respect to plaintiff's motion to vacate its default under CPLR 5015 (a), the affirmation of plaintiff's counsel detailing the attempts made by counsel to avoid the default including appearing in the court on the return date of the motion and handing up a stipulation to adjourn the motion which was accepted by the court, demonstrate that there was a reasonable excuse for the default owing to errors in the processing of the stipulation at that time. See Dilorio v Antonelli, 240 A.D.2d 537, 537 (2d Dept 1997) (reasonable excuse found where parties had entered into a stipulation and party relied upon such stipulation). Plaintiff also states a meritorious breach of contract claim insofar as plaintiff asserts that there are invoices and emails documenting contractual rights in favor of plaintiff and against defendants for goods shipped by the plaintiff. See Ahmad v Aniolowiski. 28 A.D.3d 692, 693 (2d Dept 2006) (review of the affidavit and documents demonstrated potentially meritorious defense to breach of contract action). Therefore the court shall vacate plaintiff s default in opposing the summary judgment motions of Arnold H. Simon and Star Funding, and shall resolve the motions on the merits based upon the papers submitted.

The following facts are taken from plaintiff's affidavit in opposition to the summary judgment motions of defendants. Plaintiff provides freight forwarding for goods from China to the United States including clothing items as was the case here. Plaintiff claims that in the typical transaction it reimburses agents in China for the cost of shipping items here and that its clients here must similarly reimburse it. Plaintiff also pays the cost for local shipping and storage and must also be reimbursed by its clients for such expenses. In this case Performance hired an agent in China to ship goods worth approximately $160, 000. Performance held the goods in storage locally because of the failure of the buyers, defendant United Collective Corp. (United) and non-party Designer License Holding Company (Designer), to pay for them.

Defendant Simon states that he was the CEO of Designer and that all the acts taken in connection with the transactions referenced herein were done in that capacity. He further states that Designer entered into an agreement to purchase from United the goods imported by plaintiff. Simon also concedes that Designer purchased goods directly from plaintiff as evidence by invoice number 6140 from plaintiff to Designer. Designer filed for bankruptcy in December 2009 and is not a party to this action. Satzwear is an entity apparently controlled by Simon.

Defendant Simon seeks summary judgment dismissing this action against him on the grounds that there is no basis for holding him liable for either the debts of Designer of United owed to plaintiff. Co-defendant Star Funding, Inc. (Star), cross moves for the same relief. Star is a factoring company which provided financing to Satzwear and claims that it is under no obligation to plaintiff.

Plaintiff's claim is that Simon and Star are liable to plaintiff because they guaranteed payment for goods plaintiff delivered to United and Designer. Plaintiff's claim in this action rests solely upon its claim of guaranty and therefore this court must determine as a matter of law whether such a guarantee satisfying the statute of ...

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