Takeuchi v. Silberman

Appellate Division of the Supreme Court of New York

Takeuchi v. Silberman

41 A.D.3d 336, 839 N.Y.S.2d 71

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

DecidedJune 28, 2007

StatusPublished

Cited by5 cases

This text of 41 A.D.3d 336 (Takeuchi v. Silberman) 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

Takeuchi v. Silberman, 41 A.D.3d 336, 839 N.Y.S.2d 71 (N.Y. Ct. App. 2007).

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Opinion

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered November 17, 2005, which granted plaintiffs’ motion for summary judgment in lieu of complaint on three promissory notes, with interest from October 1, 2001, and denied defendant’s cross motion to dismiss the action for lack of jurisdiction, and order, same court and Justice, entered April 10, 2006, which, insofar as appealable, denied defendant’s motion to renew, unanimously affirmed, without costs.

Jurisdiction is demonstrated by plaintiffs’ affidavit of service showing delivery to a person of suitable age and discretion at, and a mailing to, a place that defendant, in his cross motion to dismiss, acknowledged was his place of business. Such admission renders it irrelevant that for reasons of health, defendant may not have actually been at his place of business for some four months prior to the claimed service, and that plaintiffs never attempted to ascertain whether he was “available to receive service” there. Unlike CPLR 308 (4), CPLR 308 (2) does not require preliminary diligent attempts at alternative methods of service. We also reject defendant’s argument that the notes, which provide for payment of the principal amounts “without interest on October 1, 2001,” evince an intention, contrary to CPLR 5001 (b), to defer the running of prejudgment interest until commencement of the action at the earliest (see Matter of Aurecchione v New York State Div. of Human Rights, 98 NY2d 21, 26-27 [2002]). Plaintiffs established a prima facie right to recovery with proof of defendant’s execution of the notes and [337]*337default in payment, and defendant failed to meet his resulting burden to come forward with evidence establishing a triable issue (see Alard, L.L.C. v Weiss, 1 AD3d 131 [2003]). Defendant’s motion to renew was properly denied for failure to show a lack of reasonable justification for not having presented the purported new facts on the original motion (CPLR 2221 [e] [3]). Concur—Lippman, P.J., Mazzarelli, Marlow, Buckley and Malone, JJ.

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Order, Supreme Court, New York County (Leland DeGrasse, J.), entered November 17, 2005, which granted plaintiffs’ motion for summary judgment in lieu of complaint on three promissory notes, with interest from October 1, 2001, and denied defendant’s cross motion to dismiss the action for lack of jurisdiction, and order, same court and Justice, entered April 10, 2006, which, insofar as appealable, denied defendant’s motion to renew, unanimously affirmed, without costs.

Jurisdiction is demonstrated by plaintiffs’ affidavit of service showing delivery to a person of suitable age and discretion at, and a mailing to, a place that defendant, in his cross motion to dismiss, acknowledged was his place of business. Such admission renders it irrelevant that for reasons of health, defendant may not have actually been at his place of business for some four months prior to the claimed service, and that plaintiffs never attempted to ascertain whether he was “available to receive service” there. Unlike CPLR 308 (4), CPLR 308 (2) does not require preliminary diligent attempts at alternative methods of service. We also reject defendant’s argument that the notes, which provide for payment of the principal amounts “without interest on October 1, 2001,” evince an intention, contrary to CPLR 5001 (b), to defer the running of prejudgment interest until commencement of the action at the earliest (see Matter of Aurecchione v New York State Div. of Human Rights, 98 NY2d 21, 26-27 [2002]). Plaintiffs established a prima facie right to recovery with proof of defendant’s execution of the notes and [337]*337default in payment, and defendant failed to meet his resulting burden to come forward with evidence establishing a triable issue (see Alard, L.L.C. v Weiss, 1 AD3d 131 [2003]). Defendant’s motion to renew was properly denied for failure to show a lack of reasonable justification for not having presented the purported new facts on the original motion (CPLR 2221 [e] [3]). Concur—Lippman, P.J., Mazzarelli, Marlow, Buckley and Malone, JJ.

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Bluebook (online)

41 A.D.3d 336, 839 N.Y.S.2d 71, Counsel Stack Legal Research, https://law.counselstack.com/opinion/takeuchi-v-silberman-nyappdiv-2007.

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