In a July 8, 2011, decision by Justice Ramos, the court granted plaintiff-lender’s motion for summary judgment on its claims for breach of contract and guaranty, as well as dismissed defendant-borrower’s counterclaim and affirmative defenses. Notably, the court began its analysis with a footnote admonishing both parties for violating a practice rule providing that “Memos of Law ARE REQUIRED on ALL motions” and that a failure to submit a separate memo of law “may result in the denial of the motion.” The court then rejected defendant’s argument that the loan was not personally guaranteed as “belied by the documentary evidence” – namely, the loan agreement and guaranty itself – and noted that the “fatal” attorney affirmation submitted on behalf of defendant failed to “make a representation that his clients deny signing the 2009 Guaranty . . . and offers nothing by way of documentary proof sufficient to raise an issue of fact or otherwise defeat summary judgment.” The court also found that the “unusually bare affirmation in opposition” effectively abandoned the affirmative defenses pleaded in defendant’s answer by failing to address plaintiff’s motion to strike them, and otherwise rejected defendant’s “new” defense that the guaranty was a contract of adhesion, raised for the first time on this motion, as “indiscernible, nonsensical, and unsubstantiated.” Specifically, the court held that unequal bargaining power and a lack of legal representation on one side of a contract, without more, does not render the contract one of adhesion, and that a contractual interest rate of 9.75% is hardly usurious given New York’s statutory maximum rate of 16%.
General Elec. Capital Corp. v Miron Lbr. Co. Inc., Sup Ct, New York County, July 8, 2011, Ramos, J., Index No. 650728/2011