BANK OF AMERICA v. DISCOBATH PRODUCTS INC (2026)

DECISION & ORDER

In an action to recover on a business line of credit agreement and a personal guaranty, the defendants appeal from a clerk's judgment of the Supreme Court, Kings County, dated August 2, 2024.  The clerk's judgment, upon an order of the same court (Leon Ruchelsman, J.) dated July 10, 2024, granting the plaintiff's motion for summary judgment on the complaint and pursuant to CPLR 3211(a) to dismiss the defendants' counterclaim, and upon an order of the same court dated August 1, 2024, inter alia, granting the same relief to the plaintiff, is in favor of the plaintiff and against the defendants in the principal sum of $900,000.

ORDERED that the clerk's judgment is affirmed, with costs.

The plaintiff extended a commercial line of credit in the maximum amount of $900,000 to the defendant borrower, Discobath Products, Inc. (hereinafter Discobath).  The loan was personally guaranteed by Discobath's president, the defendant Aidas Kalvaitas.  Following the defendants' default, the plaintiff commenced this action to recover the amount due.  In their answer to the complaint, the defendants asserted a counterclaim alleging breach of the credit agreement.  Thereafter, the plaintiff moved for summary judgment on the complaint and pursuant to CPLR 3211(a) to dismiss the defendants' counterclaim, submitting documentary and testimonial evidence as to the defendants' default and the amount due.  In opposition, the defendants submitted an affirmation of their attorney, who argued that because the plaintiff had closed the subject bank account, his clients had no way of verifying the accuracy of the plaintiff's proof as to the amount due.  The Supreme Court granted the plaintiff's motion, and the defendants appeal.

Contrary to the defendants' contention, the plaintiff established its prima facie entitlement to judgment as a matter of law by submitting the affidavit of its special assets group analyst, attached to which were the line of credit agreement and a loan summary printout, demonstrating that Discobath defaulted on the credit agreement it had entered into with the plaintiff and that Kalvaitas had failed to meet his obligation as guarantor on the credit agreement (see Dime Community Bank v. Brigade Holdings, Inc., 236 A.D.3d 990, 991, 230 N.Y.S.3d 621;  J.P. Morgan Chase Bank, N.A. v. Lanar Sys., Inc., 120 A.D.3d 764, 764, 991 N.Y.S.2d 371;  Provident Bank v. Joyce, 111 A.D.3d 913, 913–914, 975 N.Y.S.2d 763).  The Supreme Court correctly determined that the affidavit of the plaintiff's analyst sufficed to lay a proper foundation for the admission of the attached business records as to support, in relevant part, the statement as to the amounts due under the loan as a result of the defendants' default (see CPLR 4518[a];  Bank of N.Y. Mellon v. Gordon, 171 A.D.3d 197, 205, 97 N.Y.S.3d 286).  Since the attorney affirmation submitted by the defendants in opposition failed to raise a triable issue of fact, the court properly granted that branch of the plaintiff's motion which was for summary judgment on the complaint (see CPLR 3212;  Manufacturers & Traders Trust Co. v. Capital Bldg. & Dev., Inc., 114 A.D.3d 912, 913, 980 N.Y.S.2d 813;  Gomez v. Sammy's Transp., Inc., 19 A.D.3d 544, 798 N.Y.S.2d 84).  There is no merit to the defendants' contention that the motion should have been denied as premature because discovery had yet to take place (see CPLR 3212[f] ).  It is well settled that “[t]he mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion” (Berliner v. Scherzer, 240 A.D.3d 848, 850, 240 N.Y.S.3d 126 [internal quotation marks omitted];  see Wei Ping Zheng v. Sun & Son, Inc., 233 A.D.3d 733, 735, 223 N.Y.S.3d 201).  Moreover, the defendants failed to demonstrate that the relevant facts were in the plaintiff's exclusive control (see Drug Guild Distribs. v. 3–9 Drugs, 277 A.D.2d 197, 198, 715 N.Y.S.2d 442).

The defendant's contention that the Supreme Court should have denied that branch of the plaintiff's motion which was to dismiss the counterclaim is improperly raised for the first time on appeal.

BRATHWAITE NELSON, J.P., WOOTEN, TAYLOR and GOLDBERG VELAZQUEZ, JJ., concur.