J. Juhn Assoc., Inc. v 3625 Oxford Ave. Assoc., L.P.
Annotate this CaseDecided on July 1, 2005
Supreme Court, Nassau County
J. JUHN ASSOCIATES, INC., Plaintiff,
against
3625 OXFORD AVENUE ASSOCIATES, L.P., Defendant,
2229/05
COUNSEL FOR PLAINTIFF
Sean F. McCaffrey, Esq.
38-50 Bell Blvd.
Bayside, New York 11361
COUNSEL FOR DEFENDANT
John D. Rapport, Esq.
81 Main Street
White Plains, New York 10601
Leonard B. Austin, J.
BACKGROUND
Plaintiff, J. Juhn Associates, Inc. ("Juhn"), and Defendant, 3625 Oxford Avenue Associates, L.P. ("Oxford"), entered into a contract of July 23, 2003 for the construction of a building located at 3625 Oxford Avenue, Riverdale, NY.
Juhn commenced this action by motion for summary judgment in lieu of complaint seeking to recover on a check dated January 15, 2005 in the sum of $356,000.00.
At a meeting in December 2004, Oxford issued two post-dated checks dated January 1 and 15, 2005 as "advance" payments with the claimed understanding that such payments were contingent upon the completion of repairs to the building that Juhn was to make and the assurance that all subcontractors except for one had been paid in full.
Consequently, Oxford asserts that Juhn defrauded Oxford into giving it the two checks on the basis of the meeting in December, 2004. The first check, dated January 1, 2005, in the amount of $356,000.00 was returned due to insufficient funds. Subsequently, Oxford wired this sum into Juhn's checking account. The second check dated January 15, 2005, in the amount $356,000.00 was returned unpaid with a notation that payment had been stopped by Oxford.
Juhn claims that it never agreed to any conditions in return for the checks. Oxford stopped payment of the January 15th check claiming Juhn breached their agreement.
DISCUSSION
CPLR 3213 allows a Plaintiff to move for summary judgment in lieu of complaint based on an instrument for the payment of money only. To establish a prima facie case Plaintiff must present an instrument for the payment of money only and a failure to make the payment thereunder. See, Constructamax, Inc. v. CBA Assocs., 294 AD2d 460 (2nd Dept. 2002); and SCP (Bermuda) Inc. v. Bermudatel Ltd., 224 AD2d 214, 216 (1st Dept. 1996). Once the Plaintiff has met this burden, then the Defendant must come forward and establish the existence of a triable issue of fact or defense. Id.; and Silber v. Muschel, 190 AD2d 727 (2nd Dept. 1993).
The threshold question to ask is whether this is an action on an instrument for the payment of money only. Interman Industrial Products, Ltd. v. R.S.M. Electron Power, [*2]Inc., 37 NY2d 151 (1975); Seaman-Andwall Corp. v. Wright Machine Corp., 31 AD2d 136 (1st Dept. 1968), aff'd., 29 NY2d 617 (1971). To be sure, a check is an instrument for the payment of money only. First Inter-County Bank of New York v. DeFilippis, 160 AD2d 288, 289 (1st Dept. 1990). However, Plaintiff has the burden to show that the instrument is "facially incontestable" and that Defendant has failed to make the payments called for. Maldonado v. Man-Dell Food, 178 Misc 2d 541 (Civ. Ct. NY Co.1998).
In this case, an issue arises as to the circumstances upon which Oxford stopped payment of the January 15th check. In support of the motion, Juhn submitted a copy of the check and an affidavit stating that the check payment was stopped. However, it cannot be concluded from Juhn's affidavit that Oxford's failure to allow collection of the check by its terms was without merit or basis.
A Plaintiff's motion pursuant to CPLR 3213 must be denied "if the Plaintiff fails to offer any documentary evidence that the [instrument] represent[ed] a sum due and owing him." Imbriano v. Seaman, 189 Misc 2d 357, 359 (Dist. Ct. Nassau Co., 2001). See also, First Inter-County Bank of New York v. DeFilippis, supra (concluding that due execution of a check and an insufficiently pleaded defense of fraud warranted the granting of summary judgment on the dishonored check).
On its face, the check to Juhn could have possibly represented an "advance" payment or the making of a payment due. See, Boland v. Indah Kiat Finance (IV) Mauritius, Ltd., AD2d 342 (1st Dept. 2002). Oxford asserts that the check was part of an "advance" payment conditioned upon Juhn completing repairs to the building and assuring the payment of all subcontractors except for one. Such claim is supported by the circled date on the check reflecting that it was post-dated.
In his reply affidavit, Plaintiff claims that the two checks were issued to satisfy a September 2004 requisition and were not for the purpose cited by Defendant. Plaintiff also denies that the circumstances claimed by Defendant as the basis for the post-dated checks ever existed.
In finding triable issues of fact warranting denial of Plaintiff's motion, the Court notes that the papers must be viewed in a light most favorable to Defendant, as the non-moving party. Negri v. Stop & Shop, Inc., 65 NY2d 625 (1985); and Erikson v. J.I.B. Realty Corp., 12 AD3d 344 (2nd Dept. 2004). Significantly, other than copies of the post-dated checks and the acknowledgment of the December 2004 meeting, no other documentary evidence has been submitted by either side. Given the competing claims of the parties, it is clear that triable issues of fact have been presented warranting denial of Plaintiff's motion.
Accordingly, it is,
ORDERED, that Plaintiff's motion for summary judgment in lieu of complaint is denied; and it is further,
ORDERED, that, pursuant to CPLR 3213, within thirty (30) days of the date of this Order, Plaintiff shall serve a formal complaint upon counsel for Defendant and within thirty (30) days thereafter Defendant shall serve its answer thereto; and it is further,
ORDERED, that counsel for the parties are directed to appear for a preliminary conference on September 7, 2005 at 9:30 a.m. [*3]
This constitutes the decision and Order of the Court.
Dated: Mineola, NY _____________________________
July 1, 2005 Hon. LEONARD B. AUSTIN, J.S.C.
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