Claire Provision Co. v. Medwed Food Products Corp.

Order, Supreme Court, Bronx County, entered on December 12, 1974, denying plaintiff’s motion for summary judgment, in lieu of a complaint (CPLR 3213) unanimously modified, on the law, with $60 costs and disbursements to appellant, to the extent of granting summary judgment in favor of the plaintiff, against both defendants, on the first promissory note for the unpaid amount of inventory, without interest, for the principal sum due, with interest to date of default on the 120 promissory notes as against the corporate defendant and on the first 60 notes as against the individual defendant and awarding plaintiff a counsel fee, the amount of which is to be determined upon an assessment for which this matter is remanded. The notes in suit were admittedly executed by the corporate defendant and some were guaranteed by the individual defendant. Default occurred upon presentment for payment. The conclusory claims of fraud, breach of contract and conversion, raised by defendants, are either contrary to the terms of the agreement between the parties or factually insufficient to defeat plaintiff’s claims on the notes and for an attorney’s fee. However, the provision for attorney’s fees in the amount of 20% of any balance due should be examined as to reasonableness. "In the instant case a factual *798issue is presented as to the reasonableness of the stipulated charge”. (Franklin Nat. Bank v Wall St. Commercial Corp., 21 AD2d 878; also see Equitable Lbr. Corp. v IPA Land Development Corp., 38 NY2d 516.) Settle order on notice. Concur—Stevens, P. J., Markewich, Murphy, Capozzoli and Lane, JJ.