The following papers having been read on this motion: Notice of Motion 1 Notice of Cross-Motion and Opposition 2 Reply and Opposition to Cross-Motion 3 Plaintiff moves for an order, pursuant to CPLR §3212, seeking summary judgment on its complaint in this breach of contract with a personal guaranty action; coinciding with this, Plaintiff has sought dismissal of Defendants’ counterclaim. Defendants have opposed the motion and have cross-moved to amend their answer to assert additional counterclaims against Plaintiff. Based upon the following, Plaintiff’s motion is hereby granted in its entirety over opposition and Defendants cross-motion is hereby denied in its entirety. Plaintiff and Defendant Mumtaz, on behalf of Defendant Dollar, entered into a contract on October 19, 2017, whereby Plaintiff would purchase one hundred seven thousand, one hundred fifty-five dollars ($107,155.00) worth of future receivables of Defendant Dollar for a purchase price of seventy-three thousand, nine hundred dollars ($73,900.00). Defendant Mumtaz, in addition to signing on behalf of the corporation, for which he was an owner, also signed a personal guarantee on the agreement. The sum was to be repaid by Defendant Dollar by making daily remittances to Plaintiff equal to ten percent (10 percent) of its daily revenue based upon historical data of Defendants business, with such amounts varying on a given month between five hundred fifty-nine dollars and fifty-nine cents ($559.59) and seven hundred eighty-two dollars and sixty-seven cents ($782.67). Defendant Dollar made its last payment to Plaintiff on or about November 3, 2017; thereafter, following this payment, Defendants appear to have cancelled all future payments to Plaintiff, and were deemed to be in default on the contract on or about November 7, 2017. As a preliminary matter, the Defendants request to amend their answer to include five (5) additional counterclaims against Plaintiff must be denied. The application by Defendants is presented as one under CPLR §3025(b), as opposed to CPLR §3025(c) which would ask the Court to conform the pleadings to the proof. Although leave to amend a pleading should be freely given, whether to permit a party to amend its pleading is a matter of discretion for the trial court. See generally Bleakley Platt & Schmidt. LLP v. Barbera, 136 AD3d 725, 24 NYS3d 740 (2nd Dept., 2016); see also Krichmar v. Krichmar, 42 NY2d 858, 397 NYS2d 775 (1977). The Court finds that amending the answer to add these additional counterclaims while a summary judgment motion was pending is significant in that the potential for prejudice to Plaintiff is palpable. Accordingly, the cross-motion to amend the answer to add additional counterclaims is hereby denied. See McPherson v. Glenwood Estates, Inc., 208 AD2d 699, 617 NYS2d 526 (2nd Dept., 1994). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 (1968). To make a prima facie showing, the motion must be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. Id. Once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Id., See also Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980). A guarantee is a contract and must be construed in the strictest manner, binding the guarantor to the express terms of the written guaranty. Wider Consolidated, Inc. v. Tony Melillo, LLC, 107 AD3d 883, 968 NYS2d 521 (2nd Dept., 2013). On a motion for summary judgment to enforce a written guarantee, the creditor must prove an absolute and unconditional guarantee, the underlying debt, and the guarantor’s failure to perform under the guarantee. United Rentals (North America), Inc. v. Iron Age Tool Corp., 150 AD3d 1304, 57 NYS3d 177 (2nd Dept., 2017). In the instant case, Plaintiff has established its entitlement to judgment as a matter of law on its first and fourth causes of action, seeking recovery of the unpaid balance for the future receivables purchased in the amount of eighty-thousand, four hundred sixty-eight dollars and ninety-nine cents ($80,468.99). It has provided a copy of the subject purchase agreement, including the personal guarantee sections, a copy of a payment ledger, as well as an affidavit from a person with knowledge of the account. Plaintiff, having satisfied its burden on the motion, has now shifted the burden to Defendants to raise a triable issue of fact sufficient to deny the motion; however, after a review of Defendants papers in opposition, no such triable issue can be found. Turning now to Plaintiff’s request for summary judgment to dismiss Defendants’ single counterclaim of malicious prosecution already asserted, the Court also finds that it has satisfied its burden. The elements of the tort of malicious prosecution of a civil action are prosecution of a civil action against the plaintiff, by or at the instance of the defendant, without probable cause, with malice, which terminated in favor of the plaintiff, and causing special injury. Teller v. Galak, 162, AD3d 959, 80 NYS3d 106 (2nd Dept., 2018). To qualify as a special injury, an actual imposition of a provisional remedy need not occur, and a highly substantial and identifiable interference with person, property, or business will suffice. Engel v. CBS, Inc., 93 NY2d 195, 689 NYS2d 411 (1999). Put another way, what is special about special injury is that the defendant must abide some concrete harm that is considerably more cumbersome than the physical, psychological, or financial demands of defending a lawsuit. Id at 205, 417. Here, not only can Defendants not establish malice on the part of Plaintiff, but also fail to assert any special injury whatsoever. Indeed, Defendants’ demand for one hundred thousand dollars ($100,00.00) for damages related to the instant lawsuit appears to be a simple, and somewhat arbitrary, number placed on this claim; as such, no special injury exists. Once again, Defendants’ papers in opposition are devoid of any triable issue of fact to sustain the claim as asserted. Accordingly, Plaintiff’s motion for summary judgment on its complaint is hereby granted consistent with the foregoing; coinciding with this determination, Defendants’ sole counterclaim alleged in their answer is hereby dismissed. Plaintiff shall file and serve a copy of the within order with notice of entry upon Defendants within thirty (30) days from the date of this order. Thereafter, Plaintiff shall submit a judgment on ten (10) days’ notice in the amount of $80,468.99, with interest from November 7, 2017, pursuant to CPLR §5001(a), together with attorney’s fees in the amount of three thousand, eighty dollars ($3,080.00), costs, and disbursements. This hereby constitutes the decision and order of this Court. Dated: July 1, 2020
