Ness v Fellus

Ness v Fellus 2012 NY Slip Op 01332 Decided on February 21, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 21, 2012
Andrias, J.P., Saxe, Acosta, Freedman, Richter, JJ.
6848 110804/10

[*1]Ariel Ness, Plaintiff-Respondent,

v

James B. Fellus, Defendant-Appellant.




Tagliaferro & LoPresti, LLP, New York (Marc X. LoPresti of
counsel), for appellant.
Heller, Horowitz & Feit, P.C., New York (Maurice W. Heller
of counsel), for respondent.

Second amended order and judgment (one paper), Supreme Court, New York County (O. Peter Sherwood, J.), entered April 5, 2011, inter alia, awarding plaintiff the principal sum of $500,000, and bringing up for review an order, same court and Justice, entered March 17, 2011, which granted plaintiff's motion for summary judgment in lieu of complaint, unanimously affirmed, with costs.

Plaintiff established his entitlement to summary judgment by producing the "Loan Note" for $500,000 executed by defendant on May 28, 2008 (Note 1) and demonstrating that defendant failed to pay in accordance with the note's terms (see CPLR 3213; Wachovia Bank, N.A. v Silverman, 84 AD3d 611 [2011]). In opposition, defendant failed to present evidence to support his contention that the repayment obligations of Note 1 were superceded or abrogated by a promissory note for $500,000 executed by defendant's company, Joab Capital, and plaintiff (Note 2) (see e.g. Hirsch v Rifkin, 166 AD2d 293 [1990]). The record shows that plaintiff transferred $500,000 to defendant personally after defendant had executed Note 1 and that the transfer predated the execution of Note 2 by at least 10 days and also predated defendant's purchase, using the loan funds, of shares of Jesup Lamont, Inc. (JLI) and the subsequent transfer of those shares to Joab Capital. Moreover, Note 1 provides that "[t]he Borrower agrees to remain fully bound until this note shall be fully paid, notwithstanding any extension, modification or waiver given by the Lender in writing." Defendant offered no evidence that any modification, extension or waiver was given.

Defendant's argument that the loan under Note 1 was in fact a disguised investment that plaintiff made in JLI, with defendant's assistance in the transaction, is refuted by the documentary evidence, including the language of the two notes and correspondence between the parties.

Defendant also failed to raise an issue of fact whether he signed Note 1 in his personal capacity. There is no indication beneath defendant's signature on Note 1 that he signed in his corporate capacity (see e.g. Republic Natl. Bank of N.Y. v GSO Inc., 177 AD2d 417 [1991]). Nor can it be gleaned from the note's definition of "Borrower" that defendant signed in a corporate capacity. Indeed, in his affidavit, defendant did not claim to have signed the note in his capacity as a representative of Joab Capital. Moreover, in his May 29, 2008 e-mail to defendant, plaintiff [*2]stated that defendant was to sign Note 1 in his personal capacity and to include his home address, and the record shows that plaintiff transferred the $500,000 to defendant in defendant's name and into his personal bank account.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 21, 2012

CLERK