| Grand Pac. Fin. Corp. v 97-111 HALE, LLC |
| 2011 NY Slip Op 09170 [90 AD3d 534] |
| Dcmbr 20, 2011 |
| Appellate Division, First Department |
| Grand Pacific Finance Corp., Respondent, v 97-111 HALE,LLC, et al., Appellants. (And Another Action.) |
—[*1] Herrick Feinstein LLP, New York (Scott T. Tross of counsel), for respondent.
Order, Supreme Court, New York County (Paul G. Feinman, J.), entered June 10, 2010,which granted plaintiff's motion for summary judgment on the first, second, fourth, fifth, sixth,seventh, and eighth causes of action, appointed a Referee for computation of amounts owed, andgranted, in part, plaintiff's motion to strike portions of defendants' surreply, unanimouslyaffirmed, with costs. Order, same court and Justice, entered March 22, 2011, which, to the extentappealed from, granted plaintiff's motion to confirm the Referee's report of amounts due and toenter judgment thereon, unanimously affirmed, with costs.
In this action to recover the amounts due under three loans, plaintiff established its primafacie entitlement to judgment as a matter of law by providing evidence that it held the three notesand that defendants had failed to make the payments due under the notes (Superior Fid. Assur., Ltd. v Schwartz,69 AD3d 924, 925 [2010]). In addition, defendants admitted in both their answer andamended answer that they had defaulted on the three notes.
Defendants' opposition failed to raise a triable issue of fact sufficient to defeat summaryjudgment. The notes and related guarantees prohibited defendants from bringing anycounterclaims in an action to collect under the notes, and absolutely and unconditionallyguaranteed payment of the debt irrespective of any lack of validity or enforceability of any loandocument. Thus, regardless of the merit of the counterclaims and cross claims, the guaranteeseffectively barred the defenses (Banco do Estado de Sao Paulo v Mendes Jr. Intl. Co.,249 AD2d 137, 138 [1998]). Moreover, the claims of fraudulent inducement by plaintiff wereirrelevant to the two loans originally made by a nonparty, from whom plaintiff acquired thenotes, and the third loan was made to defendant Hale Club, which did not claim that it wasdefrauded.
Supreme Court properly struck and refused to consider those portions of defendants' surreplythat went beyond the scope of the permitted surreply, which was to address only whether thecounterclaims and cross claims should be severed (see Slade v Metropolitan Life Ins.Co., 231 AD2d 467, 469 [1996]).
The motion court properly confirmed the Referee's report. At the hearing before the [*2]Referee, plaintiff provided detailed calculations of the interest andother sums due and defendants failed to rebut any of that evidence. Defendants were not entitledto discovery before the hearing; any documentation of payment on the loans would have beenwithin their possession or could have been obtained from their financial institutions. The Refereeproperly accepted copies of the various loan documents since a "reproduction, which accuratelyreproduces . . . the original . . . is as admissible in evidence as theoriginal" (CPLR 4539 [a]; see also Banco Nacional de Mexico v Ecoban Fin., 276 AD2d284 [2000]).
We have considered defendants' remaining claims and find them unavailing.Concur—Gonzalez, P.J., Mazzarelli, Andrias, Sweeny and RomÁn, JJ.