TD Bank, N.A. v PB Sales Inc. 2025 NY Slip Op 31888(U) May 27, 2025 Supreme Court, Kings County Docket Number: Index No. 526304/2024 Judge: Anne J. Swern Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 05/28/2025 03:50 PM INDEX NO. 526304/2024 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 05/28/2025
At an IAS Trial Tenil, Part 75 of the Supreme Court of the StateofNewYotk, Kings County, at the Courthouse located at 360 Adams Street, Brooklyn, New York'on the27 th day ofMay2025 · PRESENT: HON.ANNE J.SWERN,J.S.C.
TD BANK, N.A., DECISION & ORDER Index No.: 526304/2024 Plaint{ff(s). Calen:datNo.: 47 -against~ Motion Seq.: 001 and 002 PB SALES INC. and YONAWEISS'MAN,
Defendant(s).
Recitation ofthefollowingpapers as required byCPLR 2219(a): Papers Numbered. MS001 Notice of Motion, Affirmation, Affidavits and Exhibits (NYSCEF 10-19) .................................................. 1, 2 Affirmation and Exhibits in Opposition (NYSCEF 22-26) ............................ 3 Reply Affirmation and Exhibits (NYSCEF 28'-29) .................. ,..................... .4
Notice of Cross-Motion, Affirmation, Affidavits and Exhibits(NYSCEF 21-26) ............ ,.... ,............. ,................. .5, 6 Memorandum of Law and Exhibit in Opposition.(NYSCEF 30-31) ............... 7 Reply Affirmation (NYSCEF 32) ·················"··'······''··'··································8
Upontheforegoingpapers and after oralargument, the dedsionand order ofthe Court
is as follows:
Background
This is an action for breach of a loan agreement. Plaintiff seeks to recover the principal
amoµnt of$92~ 764.17 as of 1/29/2025, plus interest from 1/29/2025 on the unpaid principal at
the coritractdefa:ultinterei;t rate ofl8.000% peranrtum, together with plaintiff;s costs, expenses
and reascmable attorneys' fees incurred in connection with its eriforcernentand collection efforts.
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The complaint asserts two causes of action; i.e., l) breach of the loan agreement dated
11/14/2017, and 2) enforce the commercial guaranty executed by clefendant Weissman. (see
NYSCEFJ-4). The complaint seeks to hold the defendants jointly and severally liable for any
judgment (NYSCEF 1).
Plaintiff has now moved for an order pursuant to CPLR § 3212 •granting summary
judgment, dismissing W'EISSMAN's affirmative defenses and striking his answer. Weissman
cross-moves to dismiss this action for lack of personal jurisdiction pursuant to CPLR §3212.
Defendants e-filed an . m1swer on: 1/2/2025, asserting 22 affirmati ye defenses,. including .
that plaintiff failed to secure personal jurisdiction over both defendants (NYSCEF 8, p .12).
However, the motion only seeks to dismiss this action as to defendant Weissman. In support of
the motion, Weissman submits an affidavit and a copy of his driver's Ii cense to .establish that he
does not reside at 182.Clymer Street.
Plaintiff's motion for summary judgment is granted and defendant Weissman's motion is
denied.
Weissman's Motion to Dismiss
The process servereffectua:ted service on defendant PB Sales, Inc. through the
Corporation Division of the New York State Department of State on9/30/2024 (NYSCEF 6J. On
10/29/2024 at 1:34 p.in., 10/30/2024 at8:28 p.rrt. and 11/l 1/2024 at 10:56 a.m., the ·process
server attempted to effectuate service on Weissman at the address listed on the personal guaranty,
to wit: 182 Clymer Stteet,Apartment l, Btooklyn,.New York "112.21" (NYSCEF 4 and7)} On
11 /1 I/2024, the process server• affixed the sununons and complaint to the door of Apartment # I .
The. qoor is d~scribed as follows: "Brown door cream wall mlllticolored floor right sidce of the
1 The .affidavit of service ha.!1 a typ9graph icaJ .error. The zip coqe is· ll 212 not 11 :fa 1.
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hallway; l made diligentattemptsto serve the documents in accordance with CPLR 3081 or308
2 but was unsuccessful I was unable to determine place of employment." {NYSCEF 7).
Therefore, the process server exercised due diligence by attempting service on three separate
dates and different times of the day when Weissman ·or a person of;mitable age and discretion
could reasonably be expected to be present at such location before, during or after regular
working hours (See Barnes:v New York, 70 AD2d 580, 580 [2d Dept. 1979], qfjirmed 51 NY2d
906 (1980]}.
Pursuant to the terms· of the personal guaranty, Weissman was under an affirmative
obligation . to provide plaintiff formal \\Titten notice of a change irt address and keep plaintiff .
informed at all times of his. current address ( NYSCEF 4,. p, 4, Miscellaneous Provisions.,
Notices.). The Io.an agreement was· sjgned in 201 7 and Weissman's driver's license with an
address of 218Skillman Street, #lB, Brooklyn, New York 11205 was issued on 8/18/2020
(NYSCEF 24). As of 11/29/2024, the monthly loan statementsindicate an address of 182
Clymer Street, Apartment 1; Brooklyn, New York J 1211 (NYSCEF 13). Weissman does not
affirm that he provided plaintiff with a change of address at any time. He also does not dispute
the description ofthe door where the sul1llllons and complaint were· affixed to ot provide proof of
a utility bill, lease or W-2 thatthe address on his driver's license is his current address (Compare, Nationstar Mtge, LLC v Esdelle, 186AD3d 1384, 1387 [2d Dept. 20201). Therefore, when a
defendant "fails to swear to specific facts to rebut the statements in the process· server's affidavit
[of service]" ( City ofNew York v Miller, 72 AD3d 726, 727 [2d Dept. 201 OJ) or their affidavit
amounts "fo no illore than bare and cortclusory deriials of service" (Associates First Capital
Corp. v Wiggins, 75.AD3q. 614, 614-615 [2d Dept .20 I 01), a 1nCJtion to dismiss may be denied
without ahearing.
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Further, although Weissman denies receiving the summons a:nd complaint in the mail
from "anyone" (NYSCEF 23, ~3), hehasnot moved to dismiss this action for lack of jurisdiction
as againstPB Sales, Inc. after·service through the Secretary ofState (BCL § 306[b] [i]
[ ...Service of process on such corporation shall be complete when the secretary of state is so
served. The secretary of state shall promptly send one of such copies by certified mai 1, return
receipt requested, to such corporation, at the post office address:, on file in the department of
state, specifiedfor the purpose.J). Therefore, Weissman's affidavit is insufficientto rebutthe
presumption of service in the affidavit of service.
Plaintiff's Motion for Summary Judgment
The essential elements to recover damages for breach of contract are the existence of a
contract, plaintiff's performance, defendant's brel:lch ofits contractual obligations, and damages
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TD Bank, N.A. v PB Sales Inc. 2025 NY Slip Op 31888(U) May 27, 2025 Supreme Court, Kings County Docket Number: Index No. 526304/2024 Judge: Anne J. Swern Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 05/28/2025 03:50 PM INDEX NO. 526304/2024 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 05/28/2025
At an IAS Trial Tenil, Part 75 of the Supreme Court of the StateofNewYotk, Kings County, at the Courthouse located at 360 Adams Street, Brooklyn, New York'on the27 th day ofMay2025 · PRESENT: HON.ANNE J.SWERN,J.S.C.
TD BANK, N.A., DECISION & ORDER Index No.: 526304/2024 Plaint{ff(s). Calen:datNo.: 47 -against~ Motion Seq.: 001 and 002 PB SALES INC. and YONAWEISS'MAN,
Defendant(s).
Recitation ofthefollowingpapers as required byCPLR 2219(a): Papers Numbered. MS001 Notice of Motion, Affirmation, Affidavits and Exhibits (NYSCEF 10-19) .................................................. 1, 2 Affirmation and Exhibits in Opposition (NYSCEF 22-26) ............................ 3 Reply Affirmation and Exhibits (NYSCEF 28'-29) .................. ,..................... .4
Notice of Cross-Motion, Affirmation, Affidavits and Exhibits(NYSCEF 21-26) ............ ,.... ,............. ,................. .5, 6 Memorandum of Law and Exhibit in Opposition.(NYSCEF 30-31) ............... 7 Reply Affirmation (NYSCEF 32) ·················"··'······''··'··································8
Upontheforegoingpapers and after oralargument, the dedsionand order ofthe Court
is as follows:
Background
This is an action for breach of a loan agreement. Plaintiff seeks to recover the principal
amoµnt of$92~ 764.17 as of 1/29/2025, plus interest from 1/29/2025 on the unpaid principal at
the coritractdefa:ultinterei;t rate ofl8.000% peranrtum, together with plaintiff;s costs, expenses
and reascmable attorneys' fees incurred in connection with its eriforcernentand collection efforts.
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The complaint asserts two causes of action; i.e., l) breach of the loan agreement dated
11/14/2017, and 2) enforce the commercial guaranty executed by clefendant Weissman. (see
NYSCEFJ-4). The complaint seeks to hold the defendants jointly and severally liable for any
judgment (NYSCEF 1).
Plaintiff has now moved for an order pursuant to CPLR § 3212 •granting summary
judgment, dismissing W'EISSMAN's affirmative defenses and striking his answer. Weissman
cross-moves to dismiss this action for lack of personal jurisdiction pursuant to CPLR §3212.
Defendants e-filed an . m1swer on: 1/2/2025, asserting 22 affirmati ye defenses,. including .
that plaintiff failed to secure personal jurisdiction over both defendants (NYSCEF 8, p .12).
However, the motion only seeks to dismiss this action as to defendant Weissman. In support of
the motion, Weissman submits an affidavit and a copy of his driver's Ii cense to .establish that he
does not reside at 182.Clymer Street.
Plaintiff's motion for summary judgment is granted and defendant Weissman's motion is
denied.
Weissman's Motion to Dismiss
The process servereffectua:ted service on defendant PB Sales, Inc. through the
Corporation Division of the New York State Department of State on9/30/2024 (NYSCEF 6J. On
10/29/2024 at 1:34 p.in., 10/30/2024 at8:28 p.rrt. and 11/l 1/2024 at 10:56 a.m., the ·process
server attempted to effectuate service on Weissman at the address listed on the personal guaranty,
to wit: 182 Clymer Stteet,Apartment l, Btooklyn,.New York "112.21" (NYSCEF 4 and7)} On
11 /1 I/2024, the process server• affixed the sununons and complaint to the door of Apartment # I .
The. qoor is d~scribed as follows: "Brown door cream wall mlllticolored floor right sidce of the
1 The .affidavit of service ha.!1 a typ9graph icaJ .error. The zip coqe is· ll 212 not 11 :fa 1.
526304/2()24. Page2~f5
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hallway; l made diligentattemptsto serve the documents in accordance with CPLR 3081 or308
2 but was unsuccessful I was unable to determine place of employment." {NYSCEF 7).
Therefore, the process server exercised due diligence by attempting service on three separate
dates and different times of the day when Weissman ·or a person of;mitable age and discretion
could reasonably be expected to be present at such location before, during or after regular
working hours (See Barnes:v New York, 70 AD2d 580, 580 [2d Dept. 1979], qfjirmed 51 NY2d
906 (1980]}.
Pursuant to the terms· of the personal guaranty, Weissman was under an affirmative
obligation . to provide plaintiff formal \\Titten notice of a change irt address and keep plaintiff .
informed at all times of his. current address ( NYSCEF 4,. p, 4, Miscellaneous Provisions.,
Notices.). The Io.an agreement was· sjgned in 201 7 and Weissman's driver's license with an
address of 218Skillman Street, #lB, Brooklyn, New York 11205 was issued on 8/18/2020
(NYSCEF 24). As of 11/29/2024, the monthly loan statementsindicate an address of 182
Clymer Street, Apartment 1; Brooklyn, New York J 1211 (NYSCEF 13). Weissman does not
affirm that he provided plaintiff with a change of address at any time. He also does not dispute
the description ofthe door where the sul1llllons and complaint were· affixed to ot provide proof of
a utility bill, lease or W-2 thatthe address on his driver's license is his current address (Compare, Nationstar Mtge, LLC v Esdelle, 186AD3d 1384, 1387 [2d Dept. 20201). Therefore, when a
defendant "fails to swear to specific facts to rebut the statements in the process· server's affidavit
[of service]" ( City ofNew York v Miller, 72 AD3d 726, 727 [2d Dept. 201 OJ) or their affidavit
amounts "fo no illore than bare and cortclusory deriials of service" (Associates First Capital
Corp. v Wiggins, 75.AD3q. 614, 614-615 [2d Dept .20 I 01), a 1nCJtion to dismiss may be denied
without ahearing.
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Further, although Weissman denies receiving the summons a:nd complaint in the mail
from "anyone" (NYSCEF 23, ~3), hehasnot moved to dismiss this action for lack of jurisdiction
as againstPB Sales, Inc. after·service through the Secretary ofState (BCL § 306[b] [i]
[ ...Service of process on such corporation shall be complete when the secretary of state is so
served. The secretary of state shall promptly send one of such copies by certified mai 1, return
receipt requested, to such corporation, at the post office address:, on file in the department of
state, specifiedfor the purpose.J). Therefore, Weissman's affidavit is insufficientto rebutthe
presumption of service in the affidavit of service.
Plaintiff's Motion for Summary Judgment
The essential elements to recover damages for breach of contract are the existence of a
contract, plaintiff's performance, defendant's brel:lch ofits contractual obligations, and damages
(Cruz v Cruz, 2B AD3d 805, 807 (2d Depf2023]). Here, plaintiff has established all the
elements of a breach of contract claim (id) and a prima f acie entitlement to summary j udgrnent
through admissible evidence (Alvarez v Prospect Hospital, 68 NY2d 324 and Giuffrida v
Citibank, lO0NY2d 81). Plaintiff has submitted the affidavit.of the loan officer authenticating
the loan documents, loan history, monthly statements and demand letters (NYSCEF 2-5, l 1-13,
15).
The Court has considered the parties' remaining arguments and finds same to be without
merit.
According1y; it.is hereby
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ORDERED that plaintiff's motion for summary judgment, dismissing defendants·
affirmative defenses and striking defendants' answer is granted, and it is further
ORDERED that defendant WEISSMAN's motion to dismiss this action pursuant to
CPLR § 3211 [a] [8] is denied, and it is further
ORDERED that the Clerk of the Court shall enter judgment in the amount of $92,764.17.
plus interest at the default rate of 18.000% per annum from 1/29/2025, plus costs, expenses and
reasonable attorneys ' fees, and it is further
ORDERED that plaintiff shall submit a Clerk's Judgment within 60 days of the date of
this Order.
This constitutes the decision and order of the Court.
For Clerks use only: Hon. Anne . S ern, J.S.C. MG _ _ Dated: 5/27/2025 MD _ __ Motion seq.# _ __ _
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