August 14, 2013
eSILICON CORPORATION, Plaintiff,
WIRELESS VENTURES USA, INC., Defendant. Index No. 650996/2011
DECISION & ORDER
SHIRLEY WERNER KORNREICH, JUSTICE
Plaintiff eSilicon Corporation moves for summary judgment against defendant Wireless Ventures USA, Inc. pursuant to CPLR 3212. Plaintiffs motion is granted, on default, for the reasons that follow.
On April 14, 2011, plaintiff commenced this action to recover payments owed by defendant under written contracts for the development of a semiconductor chip. The total sum allegedly owed, as set forth in 11 invoices, is $706, 489.94. The parties' agreements further provide that (1) amounts more than 15 days past due accrue interest at the rate of 1% per month; and (2) defendant must pay plaintiffs litigation costs and reasonable attorneys' fees.
This is not defendant's first default, which occurred when it served a late answer. That default was excused when defendant finally retained counsel. Shortly thereafter, defendant's counsel withdrew. In an order dated February 19, 2013, defendant (a corporation, which cannot appear pro se) was ordered to retain new counsel to appear at a discovery conference on April 16, 2013. Defendant violated the order by not retaining counsel and defaulted on that appearance. See NYSCEF Doc. No. 40. On July 25, 2013, after defendant still refused to retain counsel and provide discovery to plaintiff, plaintiff filed the instant summary judgment motion, which was duly served. Again, defendant defaulted by not submitting an opposition.
Summary judgment may be granted only when it is clear that no triable issue of fact exists. Alvarez v Prospect Hosp., 68 N.Y.2d 320, 325 (1986). The burden is upon the moving party to make a. prima facie showing of entitlement to judgment as a matter of law. Zuckerman v City of New York, 49 N.Y.2d 557, 562 (1980); Friends of Animals, Inc. v Associated Fur Mfrs., Inc., 46 N.Y.2d 1065, 1067 (1979). A failure to make such a. prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Ayotte v Gervasio, 81 N.Y.2d 1062, 1063 (1993). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidence sufficient to establish the existence of material issues of fact. Alvarez, 68 N.Y.2d at 324; Zuckerman, 49 N.Y.2d at 562. The papers submitted in support of and ' in opposition to a summary judgment motion are examined in the light most favorable to the, party opposing the motion. Martin v Briggs, 235 A.D.2d 192, 196 (1st Dept 1997). Mere conclusions, unsubstantiated allegations, or expressions of hope are insufficient to defeat a summary judgment motion. Zuckerman, 49 N.Y.2d at 562. Upon the completion of the court's examination of all the documents submitted in connection with a summary judgment motion, the motion must be denied if there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders, Inc. v Ceppos, 46 N.Y.2d 223, 231 (1978).
Plaintiff has established its prima facie case by submitting evidence of (1) defendant's failure to make the required contractual payments; and (2) defendant's failure to object to any of the invoiced amounts. Since defendant defaulted, it has waived all defenses. Therefore, the court grants summary judgment to plaintiff against defendant in the amount of the owed payments, which total $706, 489.94. The calculation of (1) interest on that amount; and (2) attorneys' fees is referred to a Special Referee to hear and report (unless plaintiff submits an affidavit waiving such amounts, at which time the Clerk will immediately be directed to enter judgment). Accordingly, it is
ORDERED that the motion for summary judgment by plaintiff eSilicon Corporation is granted against defendant Wireless Ventures USA, Inc. in the amount of $706, 489.94; and it is further
ORDERED that the calculation of (1) the total amount of 1% monthly interest on late payments; and (2) plaintiffs attorneys' fees and litigation costs are referred to a Special Referee to hear and report with recommendations, unless the parties consent to a determination by the Special Referee, in which case the Special Referee may hear and determine said issues; and it is further
ORDERED that pending receipt of the report and a motion pursuant to CPLR 4403, final determination of that branch of the motion is held in abeyance, unless (1) the parties consent to a determination by the Special Referee; or (2) plaintiff waives its claim for interest and attorneys' fees, which, if it does, shall submit an affidavit stating so and a proposed order directing the Clerk to enter judgement; and it is further
ORDERED that, if plaintiff does not waive such amounts, a copy of this order with notice of entry shall be served on the Clerk of the Reference Part (Room 119) to arrange a date for the reference to a Special Referee and the Clerk shall notify all parties of the date of the hearing before the Special Referee; and it is further
ORDERED that the compliance conference scheduled for September 3, 2013 is cancelled.