The following e-filed documents, listed by NYSCEF document number (Motion 001) 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 were read on this motion for SUMMARY JUDGMENT. This motion arises out of an action on a loan made by plaintiff, Citibank, N.A., to defendant Bentley Medical PLLC, guaranteed by defendants NYC Wesley Medical P.C., and Bernard Bentley. BACKGROUND In March 2017 Citibank lent $300,000 to Bentley Medical to buy office equipment. The loan was guaranteed by Wesley Medical and by Bernard Bentley. In May 2019, Bentley Medical and Bentley individually were convicted on criminal charges brought by the New York Attorney General arising out of fraudulent Medicaid billing; Bentley entered a related civil settlement with the Attorney General as well. As a result, Bentley was required to surrender his medical license and pay millions of dollars in restitution. In July 2019, Bentley Medical failed to make the required monthly payment on its Citibank loan. Citibank determined that the Medicaid-fraud conviction and the missed loan payment constituted defaults on Bentley Medical’s loan, and therefore accelerated the outstanding balance on the loan. Neither Bentley Medical nor the two guarantors repaid that balance. In November 2019, Citibank sued to recover the loan balance (plus interest and attorney fees) from Bentley Medical and from the two guarantors. Bentley Medical and Wesley Medical were duly served on November 22, 2019, and Bentley was duly served on December 10, 2019. Bentley answered in January 2020, appearing pro se. Neither Bentley Medical nor Wesley Medical appeared or responded to the complaint. On February 3, 2020, Citibank moved for summary judgment under CPLR 3212 against Bentley, and default judgment under CPLR 3215 against Bentley Medical and Wesley Medical under CPLR 3215. The motion was made returnable on February 28, 2020. Citibank demanded under CPLR 2214 (b) that any response be filed seven days before the return date. On February 25, 2020, Bentley filed pro se opposition papers attacking the validity of the individual guarantee. Bentley also cross-moved to dismiss the case for lack of personal jurisdiction, although he did not include a formal notice of cross-motion. DISCUSSION I. The Branch of Citibank’s Motion Seeking Summary Judgment Against Bentley To obtain summary judgment, a movant must establish its cause of action sufficiently through evidentiary proof in admissible form to warrant a court’s directing judgment in its favor as a matter of law. (Friends of Animals v. Associated Fur Mfrs. 46 NY2d 1065, 1067 [1979].) To defeat a motion for summary judgment, the opposing party must demonstrate the existence of a factual issue requiring a trial of the action by admissible evidence. (Zuckerman v. City of New York, 49 NY2d 557, 560 [1980].) Under CPLR 2214 (b), answering affidavits and any notice of cross-motion shall be served at least seven days before the return date if a notice of motion served at least sixteen days earlier. Citibank has shown prima facie that it is entitled to judgment as a matter of law. Citibank has submitted evidence that it loaned $300,000 to Bentley Medical, guaranteed by Bentley individually and by Wesley Medical. Citibank also has submitted evidence that Bentley Medical defaulted on the loan: (i) Bentley Medical missed a loan payment; and (ii) the Medicaid-fraud-related criminal convictions of Bentley and Bentley Medical (and the related civil settlement) constituted a material adverse change under the terms of the loan. Bentley therefore must submit evidence creating a material dispute of fact. He has failed to do so. As an initial matter, Bentley’s opposition and putative cross-motion are not properly before this court. Since Citibank’s motion was made returnable 25 days after the motion was served and filed, the seven-day demand in the notice of motion was proper. Bentley therefore was required to file his opposition and any cross-motion by February 21, 2020. His papers were not filed until February 25, 2020. They are therefore untimely. The untimeliness of Bentley’s opposition papers would alone be a sufficient basis to grant summary judgment. But Bentley’s opposition and putative cross-motion fail on the merits in any event. Bentley asserts that this court lacks personal jurisdiction over him because he was not properly served. But Citibank has submitted an affidavit attesting to personal service on Bentley by hand-delivery. Bentley’s conclusory denial of service is not sufficient to overcome the presumption of service created by this affidavit. There is no merit to Bentley’s claim that his guarantee of the loan was void for lack of consideration: the issuance of the loan itself was “ample consideration for the execution of a guaranty.” (Movado Grp., Inc. v. Presberg, 259 AD2d 371, 371 [1st Dept 1999].) Bentley also contends that the circumstances of the loan constituted a “deceptive practice” in violation of federal regulations. The regulation on which Bentley relies, however, is expressly limited to consumer loans. The loan here was a business loan — made to Bentley Medical to finance the purchase of equipment for its medical practice. Finally, Bentley asserts, in essence, that New York is an inconvenient forum for him because he lives in Florida. But Bentley Medical is located in New York, Bentley was a resident of New York at the time he executed the guarantee, and Bentley irrevocably consented to the New York courts having jurisdiction over any action arising out of the loan. Citibank’s motion for summary judgment against Bentley is granted. II. The Brank of Citibank’s Motion Seeking Default Judgment Against Bentley Medical and Wesley Medical Citibank also moves for a default judgment as against Wesley Medical and Bentley Medical. The motion is granted. To obtain a default judgment, the movant must file proof of service and the default and proof of the facts constituting the movant’s claim. (CPLR 3215 [f].) Here, it is undisputed that Bentley Medical and Wesley Medical have not appeared or responded to the complaint. Citibank’s motion papers (i) supply proof of service of the complaint; and (ii) proof of the facts constituting Citibank’s claim (including the amount owed) in the form of an affidavit and supporting documents. Accordingly, it is hereby ORDERED that the branch of Citibank’s motion seeking summary judgment under CPLR 3212 as against Bernard Bentley is granted; and it is further ORDERED that the branch of Citibank’s motion seeking a default judgment under CPLR 3215 as against Bentley Medical and Wesley Medical is granted; and it is further ADJUDGED AND DECREED that plaintiff shall have judgment against defendants Bernard Bentley, Bentley Medical, and Wesley Medical, jointly and severally, in the sum of $122,865.74 in principal, $5,055.31 in interest as of January 24, 2020, $1,262.33 in late fees, per diem interest of $19.62 for each day after January 24, 2020, through entry of judgment, together with costs, disbursements, and reasonable attorney fees; and it is further ORDERED that the issue of the amount of Citibank’s reasonable attorney fees is hereby referred to a Special Referee to hear and report; and it is further ORDERED that Citibank shall serve a copy of this order with notice of its entry on all parties and on the Special Referee Clerk in the General Clerk’s Office (60 Centre Street, Room 119), who is directed to place this matter on the calendar of the Special Referee’s Part for the earliest convenient date. Dated: June 24, 2020
