[Download] "John A. Piccolo Et Al. v. Peter De Carlo" by Supreme Court of New York # eBook PDF Kindle ePub Free
eBook details
- Title: John A. Piccolo Et Al. v. Peter De Carlo
- Author : Supreme Court of New York
- Release Date : January 14, 1982
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 62 KB
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executed the same date modified a separate guarantee agreement and provided that De Carlo would place certain public securities into escrow as collateral. Plaintiffs allege that this agreement was breached by De Carlo. The complaint seeks specific performance compelling delivery of securities to the extent of $208,000. In his answer and opposing affidavit, De Carlo alleges triable issues of fact respecting fraudulent inducement, undue influence, and conflict of interest by plaintiffs attorneys, and further denies the guarantee was personal. He also alleges lack of in personam jurisdiction. Plaintiffs make no claim against defendant Rosyln Weiss who has been joined as a necessary party. It is uncontroverted that De Carlo never delivered his shares of stock in a listed corporation as security despite demand therefor, and that at least $607,500 remains unpaid on the purchase price. PAFs chapter 11 proceeding in Bankruptcy Court was dismissed and it is no longer in business, having been adjudicated bankrupt under chapter 7. Upon oral argument, plaintiffs concede that the only relief they seek is judgment against De Carlo for $208,000. Since the drastic relief of summary judgment is the equivalent of a trial (Falk v Goodman, 7 N.Y.2d 87), before the motion may be granted, it must appear clearly that no triable issue of fact exists (Glick & Dolleck v Tri-Pac Export Corp., 22 N.Y.2d 439). All that is required to defeat the motion is the identification of existing triable issues, rather than any determination upon such issues (Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395). Initially, a movant has the burden to set forth evidentiary facts sufficient to entitle that party to judgment as a matter of law, whereupon the burden is shifted to the opposing party to come forward with proof, again in evidentiary form, to show the existence of genuine triable issues of fact (Greenberg v Manlon Realty, 43 A.D.2d 968; Iandoli v Lange, 35 A.D.2d 793). Plaintiffs contend that the opposing affidavits fail to meet the standard of sufficiency required to defeat their motion for summary judgment. To defeat summary judgment one must lay bare in evidentiary form the evidence on which he relies (Marine Midland Bank v Hall, 74 A.D.2d 729). ""Bald conclusory assertions, even if believable, are not enough to [defeat summary judgment]"" (Capelin Assoc. v Globe Mfg. Corp., 34 N.Y.2d 338, 342, quoting Erlich v American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255, 259). Defendant De Carlo argues fraudulent inducement in that plaintiffs understated the amount of Federal and State tax arrearages owed by the four restaurant corporations at time of closing, which fact he first became aware of in November, 1980 after receipt of an auditors report. While he might better have documented this allegation by attaching copies of the auditors report reflecting such facts or the assessments by the taxing authorities, we find defendants allegations in the answer and opposing affidavits to be more than mere arguments, conjecture or surmise (Gray Mfg. Co. v Pathe Ind., 33 A.D.2d 739, affd 26 N.Y.2d 1045; Golding v Weissman, 35 A.D.2d 941). We cannot say that Special Term abused its discretion in affording defendant De Carlo the opportunity to conduct discovery proceedings pursuant to CPLR 3212 (subd [f]), wherein all of the records of plaintiffs corporations may be examined to determine whether any understatement of taxes due was made. Defendants inability to refute, or sustain his allegations by evidentiary proof should not be held against him on the determination of the motion (see R.C.S. Farmers Markets Corp. v Great Amer. Ins. Co., 56 N.Y.2d 918, revg 82 A.D.2d 1000; Koen v Carl Co., 70 A.D.2d 695). We further find that the issue of whether the guarantee agreement was, as defendant argues, merely a hypothecation agreement, or as plaintiffs contend, an unconditional guarantee, presents a question [90 A.D.2d 609 Page 611]