Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of [*2]motion filed by TD Bank, N.A., (hereinafter TD Bank or plaintiff) on August 7, 2024, under motion sequence two, for an order pursuant to CPLR 3212 granting summary judgment in its favor on the issue of liability on the claims asserted in its complaint against Price Cabinets Inc. and Sam Marcus. The defendants have opposed the motion.

Exhibits 1-5

Exhibits 1-8

Exhibits 1-2

On March 17, 2022, plaintiff commenced the instant action by filing a summons and verified complaint (hereinafter the commencement papers) with the Kings County Clerk's office (KCCO). On April 14, 2022, the defendants interposed and filed a joint verified answer with the KCCO. The verified complaint alleges forty-eight allegations of fact in support of three causes of action, namely, breach of a business loan agreement (hereinafter the "LOC agreement"), breach of a personal guaranty agreement, and breach of a collateral security agreement.

The verified complaint alleges the following salient facts. On April 3, 2019, Price Cabinets Inc. (hereinafter the company defendant or borrower) executed to the plaintiff a promissory note (hereinafter "the note"), which evidenced a line of credit for $100,000 (hereinafter "LOC") extended by plaintiff to the company defendant. The LOC was made on a demand basis as set forth in the note. The terms of the LOC were evidenced by a certain business loan agreement, dated April 3, 2019, which was executed by the company defendant and the plaintiff. The LOC is a United States Small Business Administration Loan.

Pursuant to the terms of the note, interest due on the LOC accrues at a variable rate at 2.5% above the Wall Street Journal Prime rate (as defined in the note), with an initial rate of 8.0%. Under the note, company defendant agreed to make monthly payments of interest only commencing May 3, 2019, and continuing the same day each month thereafter up to and including April 3, 2024. Thereafter, the company defendant was required to make principal and interest payments on the LOC commencing May 3, 2024, and continuing the same day of each month after that, until April 3, 2029, when the company defendant would be required to pay all amounts due under the note and LOC agreement.

Under the LOC agreement, the company defendant agreed that its final payment would include all the outstanding amounts due on the LOC, including principal, interest, costs, expenses, attorneys' fees, and other fees. Upon the occurrence of an event of default, at the plaintiff's option, all amounts owed to the plaintiff on LOC are immediately due and payable in full. The company defendant agreed to pay the plaintiff a late payment charge of 5% of the unpaid portion of any regularly scheduled payment that became 15 days or more late. The company defendants also agreed to reimburse plaintiff for any reasonable costs and attorneys' fees incurred by plaintiff in connection with plaintiff's attempts to enforce or preserve any rights or remedies under the Note and LOC Agreement. By correspondence dated October 4, 2021, plaintiff declared the Stated Default, accelerated the LOC, and demanded immediate payment of all amounts due on the LOC. The company defendant failed to make payment upon demand, a further default under the Note and the LOC agreement. By correspondence dated January 6, 2022, plaintiff reiterated its declaration of the stated default, acceleration of the LOC, and demanded payment of all amounts due on the LOC.

The company defendant is in default of the LOC for failing to pay the LOC upon demand. As of and including March 17, 2022, the principal amount of $99,779.00 is due under the note and LOC Agreement, plus accrued interest, late charges, and other allowed charges. Also, due and owing are loan and collection expenses, including legal fees and costs, as allowed by the note, LOC Agreement, and by law.

To secure payment of LOC, Sam Marcus (hereinafter "the guarantor") executed and delivered to plaintiff a certain guaranty, whereby the guarantor absolutely and unconditionally guaranteed payment of all amounts due on the LOC (hereinafter "the guaranty"). By virtue of the stated default, the company defendant defaulted under the terms of the note and LOC agreement, entitling plaintiff to payment of its obligations from guarantor under the terms of the guaranty. By correspondence dated October 4, 2021, the plaintiff declared the stated default, accelerated the LOC, and demanded the guarantor immediately make payment of all amounts due on the LOC. The guarantor failed to make payment upon demand, a further default under the note, LOC agreement, and guaranty. By correspondence dated January 6, 2022, plaintiff reiterated its declaration of the stated default, acceleration of the LOC, and demand that the guarantor make payment of all amounts due on the LOC. The guarantor is in default of the LOC for failing to pay the LOC upon demand. As of and including March 17, 2022, the principal amount of $99,779.00 is due under the note, the LOC agreement, and guaranty, plus accrued interest, late charges, and other allowed charges. Also, due and owing are loan and collection expenses, including legal fees and costs, as allowed by the Note, LOC agreement, guaranty, and by law.

To further secure payment of the amounts due under the LOC, on April 3, 2019, the borrower executed and delivered to plaintiff a certain security agreement named "Commercial Security Agreement" (hereinafter "the security agreement"), wherein the borrower granted plaintiff a security interest in all borrower's assets as defined in the security agreement, the note, LOC agreement, guaranty, security agreement, and all related loan documents (hereinafter collectively "the LOC documents"). The plaintiff's continuing security interest in the collateral was perfected by a UCC financing statement bearing the filing number 201904115453070, filed against the borrower in the New York State Department of State on April 11, 2019. By virtue of the stated default, the borrower is in default under the terms of the security agreement, entitling plaintiff to pursue its remedies against the collateral, including repossession of the collateral by replevin in order to inventory and sell the collateral at a public or private auction in accordance with the Uniform Commercial Code. By correspondence dated October 4, 2021, plaintiff declared the stated default, accelerated the LOC, [*3]and demanded payment of all amounts due on the LOC. The defendants failed to make payment upon demand, a further default under the LOC documents. By correspondence dated January 6, 2022, plaintiff reiterated its declaration of the stated default, acceleration of the LOC, and demand that the defendants make payment of all amounts due on the LOC, and demanded borrower assemble the collateral and make it available to plaintiff for inspection, evaluation, possession, and sale by plaintiff. The defendants failed to make payment upon demand, which constituted a further default under the LOC documents. The borrower failed to deliver possession of the collateral to plaintiff despite borrower's obligations under the security agreement and is further in default under the LOC documents as a result. Plaintiff has sustained, and will continue to sustain, immediate and irreparable harm by reason of borrower's failure to assemble and deliver possession of the collateral.

By notice of motion, filed on July 21, 2022, under motion sequence number one, the plaintiff sought an order or judgment granting TD Bank summary judgment pursuant to CPLR 3212. This was its first motion for summary judgment. The Court denied the motion, without regard to the sufficiency of defendants' opposition papers, finding that the plaintiff's evidentiary submission was deficient and that the plaintiff did not make a prima facie showing of entitlement to summary judgment on any of the claims asserted in its complaint.

On August 7, 2024, the plaintiff filed the instant motion, under motion sequence number two, for the same relief. This is its second motion for summary judgment.

When a motion for summary judgment is denied, a movant can move for renewal or reargument pursuant to CPLR 2221, provided certain criteria are met (see CPLR 2221 [a]). Pursuant to CPLR 2221 (a) "[a] motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order, unless he or she is for any reason unable to hear it []." Among other requirements, a motion for leave to reargue and a motion for leave to renew must be "identified specifically as such" (see CPLR 2221 [d] [1]; see CPLR 2221 [e] [1]).

In the instant motion, the movant does not seek permission from the Court pursuant to CPLR 2221 for leave to renew or reargue a prior motion. There are no indicia in the plaintiff's notice of motion or motion itself that it seeks reargument or renewal. Instead, the motion presents as a newly filed summary judgment motion. In its memorandum of law, movant acknowledges its submission as a successive motion for summary judgment and argues why it should be considered by the Court.

"[T]here is a 'general proscription against successive summary judgment motions'" (Oppenhein v Village of Great Neck Plaza, Inc., 46 AD3d 527, 528 [2d Dept 2007], quoting Lapadula v Kwok, 304 AD2d 798, 798 [2d Dept 2003]). "Successive motions for summary judgment should not be entertained without a showing of newly discovered evidence or other sufficient justification." Jones v 636 Holding Corp., 73 AD3d 409, 409 (1st Dept 2010); see Landis v 383 Realty Corp., 175 AD3d 1207, 1207 (1st Dept 2019). "Although successive motions for summary judgment are disfavored, a subsequent summary judgment motion may be properly entertained when it is substantively valid and the granting of the motion will further the ends of justice and eliminate an unnecessary burden on the resources of the courts" (Graham v City of New York, 136 AD3d 747, 756 [2d Dept 2016]. However, "[s]uccessive motions for the same relief burden the courts and contribute to the delay and cost of litigation. A party seeking summary judgment should anticipate having to lay bare its proof and should not expect that it will readily be granted a second or third chance." Wells Fargo Bank, N.A. v Osias, 205 AD3d 979, 982 [2d Dept 2022], quoting Deutsche [*4]Bank Natl. Trust Co. v Elshiekh, 179 AD3d 1017, 1020 [2d Dept 2020]).

Here, contrary to the plaintiff's contention, its motion does not fit within the "'narrow exception' to the successive summary judgment rule" (see Wells Fargo Bank, N.A., 205 AD3d at 981-982). The movant's prior motion was denied for its failure to provide sufficient evidence in admissible form to make a prima facie showing of entitlement on any of its claims. The Court's decision on the movant's first summary judgment motion was not meant to be an exhaustive list of the deficiencies found therein. The movant now contends it now has provided additional detail, de facto, in light the Court's prior decision.

"Successive motions for summary judgment should not be made based upon facts or arguments which could have been submitted on the original motion for summary judgment" (Hillrich Holdings Corp. v BMSL Mgt., LLC, 175 AD3d 474, 475 [2d Dept 2019]).

Here, the movant does not offer any good cause, justification, or excuse for failing to include additional documentation or detail, including in its updated affidavit, in its prior motion. The movant fails to establish that the evidence it submits in support of the instant motion for summary judgment was "not available to it when it previously moved for summary judgment, and could not have been submitted on its prior motion" (see Hillrich Holdings Corp., 175 AD3d at 475).

The successive motion by plaintiff TD Bank, N.A. for an order pursuant to CPLR 3212 granting summary judgment in its favor on the issue of liability on the claims asserted in its complaint against Price Cabinets Inc. and Sam Marcus is denied.

The foregoing constitutes the decision and order of this Court.