FG Intl. Group Inc. v. Fidia Capital, LLC

FG Intl. Group Inc. v Fidia Capital, LLC 2025 NY Slip Op 31892(U) May 22, 2025 Supreme Court, New York County Docket Number: Index No. 650073/2025 Judge: Joel M. Cohen Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication.

INDEX NO. 650073/2025 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 05/22/2025

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M -----------------------------------------------------------------------------------X FG INTERNATIONAL GROUP INC., INDEX NO. 650073/2025 Plaintiff, MOTION DATE 01/07/2025 -v- MOTION SEQ. NO. 001 FIDIA CAPITAL, LLC, FABRIZIO ARENGI BENTIVOGLIO Defendants. DECISION + ORDER ON MOTION -----------------------------------------------------------------------------------X HON. JOEL M. COHEN: The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36 were read on this motion for SUMMARY JUDGMENT IN LIEU OF COMPLAINT .

Plaintiff FG International Group, Inc. (“FG” or “Plaintiff”) seeks an award of summary judgment in lieu of complaint under CPLR 3213 against Defendants Fidia Capital, LLC (“Fidia” or “Borrower”) and Fabrizio Arengi Bentivoglio (“Arengi,” or “Guarantor”) in the amount of $3,564,300 representing the aggregate principal and interest alleged to be due as of September 28, 2024 under a Secured Promissory Note (“Note”) issued by Borrower to Plaintiff’s predecessor-in-interest, plus contractual default interest of 24% per annum on the principal sum of $3,270,000 from September 28, 2024 until payment in full, statutory interest on a missed interest payment of $294,300 from September 28, 2024 through entry of judgment, and Plaintiff’s costs of enforcement, including attorneys’ fees. For the reasons stated below, Plaintiff’s motion is denied.

Pursuant to CPLR 3213, a plaintiff makes out a prima facie case for summary judgment in lieu of a complaint by submitting proof of an instrument “for the payment of money only or

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1 of 5 [* 1] INDEX NO. 650073/2025 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 05/22/2025 upon any judgment,” and the defendants’ failure to make payment according to its terms (see Seaman-Andwall Corp. v Wright Mach. Corp., 31 AD2d 136, 137 [1st Dept 1968]; Oak Rock Fin., LLC v Rodriguez, 148 AD3d 1036, 1039 [2d Dept 2017]).

An “instrument for the payment of money only” is one that “requires the defendant to make a certain payment or payments and nothing else” (Seaman-Andwall Corp., 31 AD2d at 137; Weissman v Sinorm Deli, Inc., 88 NY2d 437, 444 [1996]). “It is well settled that a promissory note, as an instrument for the payment of money only, is entitled to the expedited procedure detailed in CPLR 3213” (R-H-D Const. Corp. v Miller, 222 AD2d 802, 803 [3d Dept 1995]). Likewise, a “guarantee qualifies as an ‘instrument for the payment of money only’ under CPLR 3213” (Torres & Leonard, P.C. v Select Professional Realties, Ltd., 118 AD2d 467, 468 [1st Dept 1986]; State Bank of India, New York Branch v Patel, 167 AD2d 242, 243 [1st Dept 1990]). “On a motion for summary judgment to enforce an unconditional guaranty, the creditor must prove the existence of the guaranty, the underlying debt and the guarantor's failure to perform under the guaranty” (Davimos v Halle, 35 AD3d 270, 272 [1st Dept 2006]). “Once the plaintiff submits evidence establishing its prima facie case, the burden then shifts to the defendant to submit evidence establishing the existence of a triable issue of fact with respect to a bona fide defense” (Griffon V. LLC v 11 East 36th, LLC, 90 AD3d 705, 707 [2d Dept 2011]).

Here, Plaintiff has established a prima facie case for summary judgment pursuant to CPLR 3213 by demonstrating that (i) Defendant Fidia Capital, LLC executed a Secured Promissory Note in an amount of up to $3,270,000.00 in favor of FG South Building, LLC (NYSCEF 6 [“Note”]), which assigned its interest therein to Plaintiff FG International Group, Inc. (NYSCEF 5), (ii) the Note contains unconditional promises to repay in accordance with its terms (NYSCEF 6 §§ 2, 3, 11.8, at 4, 13), (iii) Defendant Arengi executed a guaranty, which 650073/2025 FG INTERNATIONAL GROUP INC. vs. FIDIA CAPITAL, LLC ET AL Page 2 of 5 Motion No. 001

Defendants’ argument that summary judgment pursuant to CPLR 3213 is inappropriate because the Note lists multiple sums as the value of the September 2021 loan fails. The Note lists the “Principal Sum” as “TREE MILLIONS TWO HUNDRED SEVENTY THOUSAND AND 00/100 DOLLARS ($3,7300,000.00) [sic] [,]” defines “LOAN” as $3,300,000.00, but elsewhere states that Borrower “pays the first year of interest equal to USD 270,000.00 adding the amount to the Loan to reach the total amount of 3,270,000.00 (USD 3,000,000.00 plus USD 2,270,000.00) [sic]” (NYSCEF 6 at 2; id. §§ 3, 5). While the sum of $3,270,00.00 is recited in both the guaranty and pledge agreement executed in connection with the Note (NYSCEF 7 and 19, respectively), the Court need not resort to these documents to resolve the discrepancy because Arengi himself has done so. In a related case before this Court, Arengi stated in a sworn affirmation that “Fidia and I received three loans from [Plaintiff’s principal] and [Plaintiff’s predecessor-in-interest] in September 2021…February 2022… and on April 22, 2022…The respective amounts of the Loans are $3,270,000, $1,199,000, and €6,930,000” (NYSCEF 24 ¶¶ 3-4; see Fernandez v VLA Realty, LLC, 45 AD3d 391 [1st Dept 2007] [a party’s self-serving statements that contradict its prior testimony are insufficient to raise a triable issue of fact to defeat summary judgment]).

Defendants do, however, raise disputed issues of fact as to whether they have defaulted.

They argue that, notwithstanding the directive in the Note that interest payments shall be paid directly to the noteholder (NYSCEF 6 at pp. 4, § 3), the parties’ course of performance was that Defendants would send interest payments to Arengi’s former attorney, Enrico Tabellini, who 650073/2025 FG INTERNATIONAL GROUP INC. vs. FIDIA CAPITAL, LLC ET AL Page 3 of 5 Motion No. 001

In both actions, Defendants support their theory by pointing to provisions in the pledge agreements executed in connection with the various loans, which list Tabellini and Plaintiff’s manager, Pierrick Reynard, as the recipient of notice on behalf of the lender (NYSCEF 19-21 § 7). Whether the theory is that Defendants did not default because they paid Tabellini in his capacity as Plaintiff’s agent, or that Plaintiff is otherwise acting in bad faith to avoid receiving payment, there is a factual dispute that cannot be resolved summarily on the present record.

Accordingly, it is ORDERED that Plaintiff’s motion for summary judgment in lieu of complaint is denied; it is further ORDERED that this matter proceed as a plenary action and that the moving and answering papers on Plaintiff’s motion for summary judgment in lieu of complaint be deemed the complaint and answer, respectively, pursuant to CPLR 3213; and it is further 650073/2025 FG INTERNATIONAL GROUP INC. vs. FIDIA CAPITAL, LLC ET AL Page 4 of 5 Motion No. 001

ORDERED that the parties appear for a telephonic preliminary conference on June 3, 2025 at 11:30 a.m., with the parties circulating dial-in information to chambers at sfc- [email protected] in advance of the conference.1 This constitutes the decision and order of the Court.

5/22/2025 DATE JOEL M. COHEN, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED x DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE