Narbone v Cavale Tonuzi Corp.

[*1] Narbone v Cavale Tonuzi Corp. 2009 NY Slip Op 51858(U) [24 Misc 3d 1243(A)] Decided on September 1, 2009 Supreme Court, Kings County Demarest, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 1, 2009
Supreme Court, Kings County

Liliana Narbone, Plaintiff,

against

Cavale Tonuzi Corp. and Georgette Franzone, Defendants.



10239/09



Attorney for Plaintiff:

Susan Lask, Esq.

244 5th Avenue - Suite2369

New York, NY 10001

212-348-5762

By Fax

Attorney for Defendant

Joseph T. Johnson, Esq.

Eaton & Van Winkle LLP

New York, NY 10016

212-779-9910

Carolyn E. Demarest, J.



Plaintiff Liliana Narbone moves pursuant to both CPLR 3212 and CPLR 3213 [FN1] for an Order granting summary judgment against defendants Cavale Tonuzi Corp. (Cavale) and Georgette Franzone for payment allegedly owed on a Promissory Note.

BACKGROUND[*2]

Plaintiff claims that defendant Georgette Franzone, in her individual capacity and as president of corporate defendant Cavale signed a Promissory Note dated December 2, 2008 in the amount of $100,000 (the "Note") in exchange for a loan of $100,000. Plaintiff further claims that she transferred the $100,000 into a bank account controlled by defendants on December 3, 2008. In support of this assertion she provides a Bank of America Online Banking Form which references a transfer of $100,000 from "NJ TLR transfer to CHK 0605 Banking Ctr FORT LEE MAIN No.00. "

The Note itself provides for three installment payments. The first in the amount of $20,000 was to be paid on February 2, 2009. The second, also in the amount of $20,000, was to be paid on March 2, 2009. The third and final installment of $60,000 was due on June 2, 2009. The Note also provides that it will become immediately due and payable if the borrower fails to cure an untimely payment after five days. Plaintiff claims that defendants failed to pay the first payment due on February 2, 2009. As a result, on February 16, 2009, plaintiff sent a letter to defendant Franzone notifying her of the default and demanding payment. Defendants' subsequent failure to pay caused plaintiff to commence this action.

In opposition to the motion, defendant Franzone outright admits that she received $100,000 from the plaintiff in early December 2008 but claims that plaintiff "offered to advance" Franzone $100,000 "as an act of generosity and in furtherance of [Narbone and Franzone's] personal relationship" (Franzone Affidavit in Opposition ¶¶ 4,5). Franzone claims that she accepted the "advance" with the understanding that she would not be able to reimburse plaintiff for at least one year. Franzone also admits that plaintiff eventually began requesting security for the advance of the funds some time before February 2009 when their relationship ended. However, Franzone argues that the Note is a forgery and, more specifically, that the signatures on the Note are not her own.

In support of this contention, Franzone submits email correspondence between her and plaintiff. The email correspondence commences on February 1, 2009, a date subsequent to the December 2, 2008 date the Note was allegedly executed. Although the emails postdate the alleged Note, they all discuss proposals by plaintiff for defendant to secure a loan. For example, in an email dated February 1, 2009, plaintiff states that her alleged attorney at the time [FN2] was "preparing papers to finalize the agreement and secure the loan." Furthermore, in an email dated February 5, 2009 plaintiff states that she "will drop a simple but more professional agreement . . . I will give you 6 month." In the final email dated April 15, 2009, plaintiff states: "As for the loan aspect, I will need you to give me an $18K immediately against the 100K you owe me . . . I made arrangements for a payment plan to be put in place . . . Carlo can meet with us at his office . . . to do the paper work and calculations." (Exhibit A to the Franzone Affidavit in Opposition, Email dated April 15, 2009). Franzone argues that the mere fact that these emails discuss what would appear to be a yet to be executed promissory note proves that the Note attached to plaintiff's motion is a fake since it predates these emails.

Furthermore, defendant argues that the Note is a forgery by the simple fact that the signatures thereon are not her own. In support of this argument defendant submits signed copies [*3]of checks, a mortgage and her New York State driver license, arguing that these signatures do not match the signatures on the Note. Franzone specifically attests that in her true signature, her first and last name are discernable as separate words, the capital letter "G" and the lowercase "g" are discernable in her first name and that the capital letter "F" in her last name is also distinct. Defendant argues that the signatures on the Note do not have these characteristics.

DISCUSSION

A promissory note qualifies as an instrument eligible for treatment under CPLR § 3213 if the plaintiff provides proof of the note and a failure to make the payments called for by its terms (CPLR § 3213; Seaman-Andwall Corp. v Wright Mach. Corp., 31 AD2d 136, 137 [1st Dept 1968], aff'd 29 NY2d 617 [1971]; see also Gateway State Bank v Shangri-La Private Club for Women, 113 AD2d 791 [2d Dept 1985]; Quest Commercial, LLC v Rovner, 35 AD3d 576 [2d Dept 2006]). The usual standards for summary judgment motions apply to CPLR § 3213 motions; once plaintiff establishes that the action is based on an instrument for the payment of money only, and that defendant has not made payments under the terms of the instrument, defendant must come forward with proof of evidentiary facts showing the existence of a material issue of fact in order to defeat the motion (Gateway, 113 AD2d at 791).

In support of her motion, plaintiff has proffered a copy of the Note allegedly signed by defendant in her individual and corporate capacity. The Note provides, in relevant part, that the defendants, in exchange for a loan of $100,000, promise to pay to plaintiff that amount plus interest. Therefore, plaintiff has met her burden to establish that the instant action is based on an instrument for the payment of money only (Gateway, 113 AD2d at 791-92).

Moreover, plaintiff provides evidence that defendants defaulted in making their first payment under the Note via a letter, addressed to defendant Franzone, dated February 16, 2009, which provides notice of default based upon defendants' failure to make the first payment due under the Note and demand for payment. Therefore, plaintiff has met her burden on this motion for summary judgment (North Fork Bank v Rosen, 225 AD2d 598 [2d Dept 1995]).

However, defendant raises various issues of fact as to whether the Note is a forgery. First and foremost defendant provides documentary evidence of signatures which appear to differ from the signatures on the Note. Secondly, defendant points out distinguishing characteristics between the signatures on the Note and the signatures on her checks, mortgage and driver license, thus, raising an issue of fact. (Diplacidi v Gruder, 135 AD2d 395 [1st Dept 1987][discussing defendant's contention that his signature on a note was forged by pointing out easily discernible distinctions between his signature and the signature on the note]; cf. Banco Popular North America v Victory Taxi Management, Inc., 1 NY3d 381, 384 [2004]["Something more than a bald assertion of forgery is required to create an issue of fact contesting the authenticity of a signature."]).

Defendant also submits emails which postdate the alleged date of the Note. As discussed, in each of these emails plaintiff appears to negotiate the terms of an agreement which had not yet been formalized. This supports defendants' contention that the Note was a forgery and raises an issue of fact as to whether defendant ever entered into a formalized promissory note or other written agreement for her receipt of the $100,000. (cf. HDA Parking Developers, Inc. v Mount Vernon Hospital, Inc., 260 AD2d 350 [2d Dept 1999][finding that no issues of fact existed where documentary evidence supported lower court's finding that parties never actually entered into an [*4]agreement]).

However, plaintiff replies by arguing that the emails subsequent to the Note regard discussions to renegotiate the Note. In reply, plaintiff also submits the affirmation of Carlo Scissura Esq. who, according to defendant, was plaintiff's attorney during the time period surrounding the Note. In his affirmation he attests that he met with the parties in February 2009 [FN3] to discuss "their options regarding [securing] a $100,000 debt between them" with private property owned by defendant but that he has "no recollection regarding the discussion of a note." (Scissura Affirmation ¶ 2). Furthermore, he goes on to state that he "did not prepare any documents regarding this proposed deed transfer nor any other note or legal instrument for either Ms. Franzone or Ms. Narbone" (Scissura Affirmation ¶ 5). Notably, Mr. Scissura specifically attests that he had no knowledge of an existing note, nor does he support plaintiff's argument that the purpose of the meeting and subsequent emails was to renegotiate the Note. At best, plaintiff's reply and Mr. Scissura's affirmation support defendant's position that, although she received $100,000 from plaintiff, she never signed any formal agreements with respect to repayment. Thus, an issue of fact remains as whether any written agreement existed between the parties. Plaintiff's CPLR 3213 motion for summary judgment in lieu of the complaint is denied.

Plaintiff's notice of motion also states that plaintiff moves pursuant to CPLR 3212. However, plaintiff's allegations are premised only upon the Note. Plaintiff states no other basis for recovery against defendants. Thus, although Franzone has admitted that she received $100,000 from plaintiff as an "advance," the substance of the understanding regarding repayment appears to be in dispute. Therefore, the Court denies the CPLR 3212 motion as well, without prejudice to renew following joinder of issue, and elects to exercise its discretion under CPLR 3213 to order plaintiff to file a formal Complaint within twenty (20) days of the date of this Order. (see Schultz v Barrows, 94 NY2d 624, 628 [2000]; see also Schultz v Barrows, 263 AD2d 565, 571 [3d Dept 1999]).

The foregoing constitutes the decision and order of the Court.

E N T E R,

___________________

J. S. C. Footnotes

Footnote 1:Although the Notice of Motion states that plaintiff is moving under both CPLR 3212 and CPLR 3213, the Court points out that no complaint has been filed in this action and the form of the motion is that of one for summary judgment in lieu of the complaint.

Footnote 2:According to defendant Franzone, Carlo Scissura, Esq. was plaintiff's counsel at the time. Many of the emails reference a "Carlo" by first name only.

Footnote 3:The Court notes that February 2009 is when plaintiff allegedly sent her demand letter to defendant.