| JPMorgan Chase Bank, N.A. v Galt Group, Inc. |
| 2011 NY Slip Op 04208 [84 AD3d 1028] |
| May 17, 2011 |
| Appellate Division, Second Department |
| JPMorgan Chase Bank, N.A., Respondent, v Galt Group,Inc., Doing Business as Enhance Face & Body, et al., Appellants. |
—[*1] Helfand & Helfand, New York, N.Y. (Aaron Weissberg of counsel), forrespondent.
In an action to recover on a promissory note and unconditional personal guaranties, thedefendants appeal from an order of the Supreme Court, Westchester County (Murphy, J.),entered March 17, 2010, which granted the plaintiff's motion for summary judgment on thecomplaint and dismissing the defendants' affirmative defenses and counterclaims.
Ordered that the order is affirmed, with costs.
The defendant Bonnie Eskow-Hagen is the president of the defendant Galt Group, Inc., doingbusiness as Enhance Face & Body (hereinafter Galt). On October 8, 2003, Galt entered into anagreement with the plaintiff, JPMorgan Chase Bank, N.A. (hereinafter Chase), for a UnitedStates Small Business Administration loan (hereinafter the SBA Loan), pursuant to which Galtborrowed $400,000 for the purpose of purchasing, renovating, and operating a day spa inHartsdale. Eskow-Hagen and her husband, the defendant Karl G. Hagen, both signed personalguaranties in connection with the loan. The day spa was forced to close in January 2008. Galtdefaulted on the SBA Loan that month, and Chase commenced this action against Galt,Eskow-Hagen, and Hagen (hereinafter collectively the defendants) shortly thereafter.
Chase and the defendants entered into a forbearance agreement on April 7, 2008, pursuant towhich the defendants agreed to make certain payments, and Chase agreed to forbear in theprosecution of this action. In a letter dated July 13, 2009, Chase informed the defendants thatthey had not made any forbearance payments since February 19, 2009, and advised them to servean answer to the complaint. The defendants thereafter served an answer dated September 8, 2009.
Chase moved for summary judgment on the complaint and dismissing the affirmativedefenses and counterclaims set forth in the answer, submitting, in support of the motion, interalia, the relevant promissory notes and agreements. In opposition, the defendants submitted aseries of e-mails which, they argued, demonstrated that they had entered into yet anotheragreement with Chase, by which Chase agreed to forbear from prosecuting this action while thedefendants were given an apparently unlimited time to obtain a refinancing loan to pay off or paydown the SBA Loan. The Supreme Court granted Chase's motion in a for summary judgment.We affirm.[*2]
To make a prima facie showing of entitlement tojudgment as a matter of law in an action to recover on a note, and on a guaranty thereof, aplaintiff must establish "the existence of a note and guaranty and the defendants' failure to makepayments according to their terms" (Verela v Citrus Lake Dev., Inc., 53 AD3d 574, 575 [2008]; see Gullery v Imburgio, 74 AD3d1022 [2010]). Here, Chase submitted the SBA Loan documents, including the relevantpromissory notes, the personal guaranties, and evidence of the defendants' default, whichtogether established its prima facie entitlement to judgment as a matter of law on the complaint.
Once Chase established its prima facie entitlement to judgment as a matter of law, "[t]heburden then shifted to the defendant [s] to establish by admissible evidence the existence of atriable issue of fact with respect to a bona fide defense" (Gullery v Imburgio, 74 AD3d at1022; see Verela v Citrus Lake Dev., Inc., 53 AD3d at 575). The defendants did notcontest the validity of any of the agreements, notes, or guaranties, nor did they dispute that theywere in default. Instead, they submitted certain e-mails into evidence, and argued that they hadentered into yet another agreement with Chase—a payoff/paydown agreement—bywhich Chase agreed to refrain from prosecuting the instant action while the defendants weregiven an apparently unlimited time to obtain a refinancing loan. Contrary to their contention,however, the Supreme Court correctly concluded that the e-mails contained no evidence of anysuch agreement between Chase and the defendants. The Supreme Court, therefore, properlygranted Chase's motion for summary judgment on the complaint and dismissing the defendants'affirmative defenses and counterclaims.
In view of the foregoing, we do not address Chase's remaining arguments. Rivera, J.P.,Skelos, Florio and Austin, JJ., concur.