Kelly v. Cal & Co. Autos Inc.

Appellate Division of the Supreme Court of New York

Kelly v. Cal & Co. Autos Inc.

292 A.D.2d 156, 738 N.Y.S.2d 196, 2002 N.Y. App. Div. LEXIS 2255

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 5, 2002

StatusPublished

This text of 292 A.D.2d 156 (Kelly v. Cal & Co. Autos Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kelly v. Cal & Co. Autos Inc., 292 A.D.2d 156, 738 N.Y.S.2d 196, 2002 N.Y. App. Div. LEXIS 2255 (N.Y. Ct. App. 2002).

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Opinion

Judgment, Supreme Court, New York County (Barry Cozier, J.), entered on or about March 21, 2001, which, upon an order granting plaintiffs motion for summary judgment in lieu of complaint pursuant to CPLR 3213, awarded plaintiff $378,958.90 in damages, unanimously reversed, on the law, without costs, the motion denied and the matter remanded for further proceedings.

The motion court found the existence of plaintiffs prima facie right to recovery of loan proceeds under the instrument in issue, and that defendant had failed to come forward with proof showing the existence of a triable issue of fact with respect to a bona fide defense. However, defendant’s affidavit and his attorney’s affirmation were clearly submitted in opposition to the motion. Defendant’s representations therein that he had not received all of the loan proceeds, and the absence of documentation by plaintiff evidencing the transfer of the funds, create a triable factual issue (cf. Gateway State Bank v Shangri-La Private Club For Women, 113 AD2d 791, affd 67 NY2d 627). Moreover, although plaintiff claimed that the attorney used as a purported escrow agent for the loan proceeds was defendant’s own attorney, defendant claims that he was plaintiffs agent, a fact seemingly supported by the additional fact that the agent and plaintiff share the same address. Defendant asserted that the attorney delivered checks, either to him or various companies participating in the renovation of Crichton’s gas station, in the amount of only $110,000 out of the loan of $275,000.

Accordingly, this matter is not amenable to disposition under CPLR 3213, and must be remanded for further proceedings. Concur — Nardelli, J.P., Tom, Andrias, Rubin and Buckley, JJ.

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Judgment, Supreme Court, New York County (Barry Cozier, J.), entered on or about March 21, 2001, which, upon an order granting plaintiffs motion for summary judgment in lieu of complaint pursuant to CPLR 3213, awarded plaintiff $378,958.90 in damages, unanimously reversed, on the law, without costs, the motion denied and the matter remanded for further proceedings.

The motion court found the existence of plaintiffs prima facie right to recovery of loan proceeds under the instrument in issue, and that defendant had failed to come forward with proof showing the existence of a triable issue of fact with respect to a bona fide defense. However, defendant’s affidavit and his attorney’s affirmation were clearly submitted in opposition to the motion. Defendant’s representations therein that he had not received all of the loan proceeds, and the absence of documentation by plaintiff evidencing the transfer of the funds, create a triable factual issue (cf. Gateway State Bank v Shangri-La Private Club For Women, 113 AD2d 791, affd 67 NY2d 627). Moreover, although plaintiff claimed that the attorney used as a purported escrow agent for the loan proceeds was defendant’s own attorney, defendant claims that he was plaintiffs agent, a fact seemingly supported by the additional fact that the agent and plaintiff share the same address. Defendant asserted that the attorney delivered checks, either to him or various companies participating in the renovation of Crichton’s gas station, in the amount of only $110,000 out of the loan of $275,000.

Accordingly, this matter is not amenable to disposition under CPLR 3213, and must be remanded for further proceedings. Concur — Nardelli, J.P., Tom, Andrias, Rubin and Buckley, JJ.

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Bluebook (online)

292 A.D.2d 156, 738 N.Y.S.2d 196, 2002 N.Y. App. Div. LEXIS 2255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-cal-co-autos-inc-nyappdiv-2002.

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