cision and Order Warex Terminals Corporation,

SUPREME COURT OF THE STATE OF NE YORK COUNTY OF THE BRONX - Part 4

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Plaintiff Index No. 25326/2015E

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-against-

Ishtiaq Ahmed Khan Howard H. Sherman [S.C.

Defendant

The following papers numbered 1 read on this motion for summary judgment in lieu of a complaint

Notice of Motion - Affirmation, Affidavit, Exhibits A-E [1-4] 1

Upon the forgoing papers this motion by plaintiff seeking judgment against defendant in the amount of $ 611,248.33, and costs and disbursements , including reasonable legal fees, submitted without opposition, is granted.

Plaintif Warex Terminals Corporation (Warex) is in the business of supplying

gasoline to gas stations and defendant Ishtiaq Ahmed Khan (Khan) is the president of

Alerton Avenue Inc. (Alerton) . Warex provided gas to Alerton pursuant to a Dealer

Sales Agreement (DSA) with payment secured by promissory notes executed

respectively, in November 22, 2010, and May 6, 2013. Warex has demanded payment

from defendant of $ 611,248.33 representing payment for gasoline provided to the

dealer, which is a sum certain secured by the Guaranty in the DSC and the promissory

notes.

Plaintiff moves for summary judgment pursuant to CPLR 3213 upon the ground

that the action is based upon instruments for the payment of money only which is now

FILED: BRONX COUNTY CLERK 04/15/2019 03:54 PM INDEX NO. 25326/2015E

NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 04/15/2019

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due and payable. No opposition is interposed.

Upon review of the submissions here, plaintiff has established a prima fade case

by virtue of the supporting affidavit, and the documentary proof including copies of

the DSA, and the supporting Trial Balance, and the promissory notes, and upon a

showing of defendant's failure to make payments called for therein (DDS Partners v

Celenza 6 A.D.3d 347, 348, 775 N.Y.S.2d 319 [1st Dept. 2004]). This documentary proof

established the unconditional promise by defendant to repay plaintiff the funds loaned

to the dealers, and plaintiff's claim rests entirely on the failure to make the guaranteed

installments in accordance with the terms of the agreement's guarantee, and the notes

and as such, there is no need to refer to any extrinsic facts to establish plaintiff's claim

(see, Warburg, Pincus Equity Ptnrs., L.P. v. O'Neill, 11 A.D.3d 327, 783 N.Y.S.2d 354 [1'

Dept. 2004]).

Accordingly, it is

ORDERED that the motion for summary judgment in lieu of a complaint be and

hereby is granted.

Settle judgment together with an itemized affirmation of attorneys fees.

Dated: April 8, 2019

Howar4 H. Sherman

FILED: BRONX COUNTY CLERK 04/15/2019 03:54 PM INDEX NO. 25326/2015E

NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 04/15/2019

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