Targeted Lease Capital, LLC v. Wheel Equip. Leasing, LLC

187 A.D.3d 1628

133 N.Y.S.3d 694

TARGETED LEASE CAPITAL, LLC, Plaintiff-Respondent,

v.WHEEL EQUIPMENT LEASING, LLC, doing business as Y.E.S. Leasing, Defendant-Appellant, et al., Defendant.

(Appeal No. 2.)

441

CA 19-00802

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: October 9, 2020

PHILLIPS LYTLE LLP, BUFFALO (PRESTON L. ZARLOCK OF COUNSEL), FOR DEFENDANT-APPELLANT.

BAUMEISTER DENZ, LLP, BUFFALO (ARTHUR G. BAUMEISTER, JR., OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

PRESENT: CENTRA, J.P., NEMOYER, TROUTMAN, WINSLOW, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action asserting causes of action for, inter alia, breach of warranties in a broker agreement (agreement) that it entered into with Wheel Equipment Leasing, LLC, doing business as Y.E.S. Leasing (defendant). Supreme Court granted plaintiff's motion insofar as it sought summary judgment on the complaint against defendant as well as dismissal of defendant's counterclaim, and awarded plaintiff a money judgment against defendant. Defendant appeals, and we affirm.

Plaintiff met its initial burden on the motion with respect to defendant by establishing, inter alia, that defendant submitted to it for financing a re-brokered and fraudulent transaction, which constituted a breach of various provisions of the agreement; that it sustained damages as a result of the breach; and that it was entitled to recover damages from defendant pursuant to the indemnification provision in the agreement. In opposition, defendant failed to raise an issue of fact (see generally Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). To the extent that defendant contends that there is an issue of fact concerning the applicability of the defense of estoppel, i.e., whether defendant justifiably relied on plaintiff to verify and collect an advance payment, we note that defendant submitted no evidence of justification beyond nonprobative email correspondence (see Inter-Power of N.Y. v. Niagara Mohawk Power Corp. , 213 A.D.2d 110, 114, 630 N.Y.S.2d 584 [3d Dept. 1995] ; see generally Syracuse Orthopedic Specialists, P.C. v. Hootnick , 42 A.D.3d 890, 893, 839 N.Y.S.2d 897 [4th Dept. 2007] ).

Defendant further contends that the court erred in granting the motion with respect to defendant inasmuch as defendant is entitled to additional discovery pursuant to CPLR 3212 (f). We conclude, however, that defendant did not make the requisite evidentiary showing that facts essential to justify opposition to the motion may exist but could not then be stated (see Hewitt v. Liverpool Cent. Sch. Dist. , 134 A.D.3d 1507, 1509, 22 N.Y.S.3d 272 [4th Dept. 2015] ; see also M&T Bank v. Benjamin [Appeal No. 2], 145 A.D.3d 1519, 1520, 44 N.Y.S.3d 301 [4th Dept. 2016] ). Defendant's assertion that the parties intended the subject transaction to proceed outside of the purview of the agreement is based on hearsay (see Lau v. Rossi , 150 A.D.2d 969, 970, 541 N.Y.S.2d 872 [3d Dept. 1989] ) and, furthermore, that assertion is contradicted by the provision of the agreement stating that "all lease and financing documents and transactions" between the parties would be governed by the agreement. Defendant cannot use the extrinsic evidence it hopes to obtain from further discovery to vary that provision or to create an ambiguity with respect thereto (see W.W.W. Assoc. v. Giancontieri , 77 N.Y.2d 157, 162-163, 565 N.Y.S.2d 440, 566 N.E.2d 639 [1990] ; see also R/S Assoc. v. New York Job Dev. Auth. , 98 N.Y.2d 29, 32-33, 744 N.Y.S.2d 358, 771 N.E.2d 240 [2002], rearg denied 98 N.Y.2d 693, 747 N.Y.S.2d 411, 775 N.E.2d 1291 [2002] ; Schmidt v. Magnetic Head Corp. , 97 A.D.2d 151, 157, 468 N.Y.S.2d 649 [2d Dept. 1983] ).

Contrary to its contention, defendant also failed to make an evidentiary showing that further discovery might yield facts substantiating its position that plaintiff waived its contractual protection against re-brokered transactions. Defendant submitted no evidence of a " ‘clear manifestation...