Yi Tang v Xu Liu

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Yi Tang v Xu Liu 2012 NY Slip Op 30430(U) February 7, 2012 Supreme Court, Nassau County Docket Number: 1785/10 Judge: Joel K. Asarch Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ------ ----- ------------ --- ---- - --- ---- --- [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU: PART 13 -------- ------------ ---- x YI TANG, Plaintiff - against - DECISION AND ORDER Index No: 1785/1 XU LIU, Motion Sequence Nos: 001 and 002 Original Retur Dates: 10- 1811- 09- Defendant. ------------ --------- x PRESENT: HON. JOEL K. ASARCH, Justice of the Supreme Court. The following named papers numbered 1 to 8 were submitted on this Notice of Motion and Notice of Cross- Motion on November 9 , 2011 : Papers numbered Notice of Motion , Affrmation and Affidavit Memorandum of Law in Support Notice of Cross- Motion Affrmation and Affdavit in Support of Cross- Motion Affirmation in Opposition The motion by Plaintiff Yi Tang for an Order pursuant to CPLR 3212 , granting Plaintiff summar judgment on his two causes of action (breach of contract and unjust enrichment) and dismissing the Defendant's counterclaims (motion sequence No. 1), and the cross-motion by Defendant Xu Uu for sumar judgment dismissing the complaint and granting Defendant judgment on his counterclaims (motion sequence No. 2), are decided as follows: Plaintiff alleges in his moving papers that the Defendant approached Plaintiff on or about [* 2] July 12 , 2007 in order to borrow $9 000. Plaintiff brought the money to Defendant's store to deliver it to his wife , at which point she signed a handwritten acknowledgment that she received the money, which read specifically: " Receipt. Received Yi Tang s loan $9 000 dollars (nine thousand dollars). Using this as a receipt. 7/12/2007. On or about August 7 , 2007, Defendant allegedly again approached Plaintiff asking to borrow $70 000 , an amount which both paries agreed would include the earlier loan of$9 000. Plaintiff then tendered a check to Defendant's corporation , as requested by Defendant , for $58 000, and additionally gave Defendant $3 000 in cash. Defendant signed a piece of paper with the following language handwritten in Chinese: " Loan note Now borrowing seventy thousand u.s. Mr. Tang Yi. Receipt. Mr. Xu Liu is responsible for the loan. " and signed by the Defendant. The note year; therefore , from was dated August 7 , 2007 Plaintiff alleges to have orally agreed contemporaneously to the signing of the note that the term ofthe dollars with Defendant loan would be no longer than one Defendant was required to repay the note before August 7 2008. Upon reminding Defendant on May 16 , 2008 of the upcoming deadline , Defendant ceased contact with Plaintiff and refused to repay the loan. Plaintiff seeks repayment of $70 000 loan and dismissal of Defendant's counterclaims. Defendant alleges in his cross-motion that the.money given by Plaintiff was actually a receipt acknowledging prepayment for materials from Defendant' s corporation. Defendant alleges that a oral contract existed between himself, in the capacity of representative for his corporation and not personally as an individual , and Plaintiff, in order to provide materials for the renovation to Plaintiff's propert. Defendant additionally alleges that Plaintiff tendered $58 000 and that upon completion of services , an invoice was sent to the Plaintiff for the full amount of $77 891.37. [* 3] Defendant provides only an invoice from his company, dated September 25 2008 , after Plaintiff's alleged loan was to be repaid. This invoice contains a list of materials that Defendant allegedly installed , along with their prices and copies of Plaintiff' s business card. Defendant provides no other documentation reflecting a contractual agreement between himself and Plaintiff, and nothing containing Plaintiff's signature. Defendant seeks $19, 891.37 , the difference between the $58 000 deposit and the total cost of goods and services rendered , and dismissal of Plaintiff's complaint. There is no dispute that on or about August 7 , 2007 , Plaintiff and Defendant entered into an exchange resulting in a check for $58 000 being tendered from Plaintiff to Defendant. What is in dispute , and not capable of being resolved by the papers submitted herein , is the validity of the agreement between Plaintiff and Defendant , be it a loan as alleged by Plaintiff or a contract as alleged by Defendant. Also in dispute are how much money was actually tendered to Defendant by Plaintiff, whether Defendant made the agreement with Plaintiff in his personal capacity or as a representative for his company, and whether or not Defendant' s company did indeed provide materials and renovation services to Plaintiff's propert. What is also clear is that this is the second action brought by the Plaintiff against the Defendant. The first action (Supreme Cour Nassau County index number 15413/08) was dismissed for lack of personal jurisdiction following a traverse hearing on November 9 2009. In his affdavit sworn to on May 22 , 2009 in the previous action , Defendant Xi Liu states that " (o)n or about August 2007 , while PlaintiffYi Tang and defendant Xu Liu were talking over lunch , PlaintiffYi Tang agreed that he wil lend Natural Product America INC. Seventy Thousand Dollars ($70 000. 00). The rule in motions for summar judgment has been stated by the Appellate Division, Second Dept. , in Stewart Title Insurance Company v Equitable Land Services, Inc. 207 AD2d 880 881 (2 [* 4] Dept. 1994): It is well established that a par moving for sumar judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient (Winegrad v New York Univ. Med Center 64 NY2d 851 853; Zuckerman v City of New York, 49 issues of fact NY2d 557 , 562). Of course sumar judgment is a drastic remedy and should not be granted where there is (State any doubt as to the existence of a triable issue Bank v McAulif, 97 AD2d 607 (3rd Dept. 1983)), but once a prima facie showing has been made , the burden shifts to the pary opposing the motion for sumar judgment to produce evidentiar proof in admissible form sufficient to establish material issues of fact which (Alverez v Prospect Hosp. , 68 Zuckerman v City of New York supra require a trial ofthe action NY2d 320 324; p. 562). Summar judgment , however , is a drastic remedy which should be granted only when there par oftheir day in Cour. Even the color of a triable issue of fact should foreclose this remedy. Therefore , in deciding a sumar is no clear triable issue of fact presented because it wil deprive a judgment motion , the evidence must be scrutinized carefully in the light most favorable to the nonmoving par. Issue finding rather than issue determination is the key to the proper review of a sumar See, Ridnitsky v Robbins 191 AD2d 488 (2 judgment motion. Dept. 1993); Protection Corp. v Manufacturers Hanover Trust Co. 172 AD2d 658 (2 On a motion for summar judgment , it is the proponent's burden to make a Triangle Fire Dept. 1991). prima facie showing of entitlement as a matter of law by tendering suffcient evidence , in admissible form , to demonstrate the absence of any material issues of fact Corp. 4 NY3d 373 384 (2005); Andre v Pomeroy, (JMD Holding Corp. v Congress Financial 35 NY2d 361 (1974)). The movant' s failure to meet their burden of proof requires the denial of sumar judgment regardless of the sufficiency, [* 5] or lack thereof, of opposing papers. (1 sl Dept. (Liberty Taxi Management, Inc. v Gincherman 32 AD3d 276 2006)). Here , Plaintiff possesses two documents that contain the signatures of Defendant and Defendant' s wife. These documents use unambiguous loan language , and the Defendant admits to having signed one of the documents along with the receipt of a check for $58 000. While the writing does not include all terms on its face to demonstrate a complete negotiable loan note , a mere failure to include details of repayment does not serve to release the maker of the note from liabilty, but rather results in a demand note , payable on demand (Unif. Commercial Code , 3- 108(a)(i). The language that is included in the loan note , along with the accompanying check for $58 000 , is prima facie proof that the Plaintiff indeed loaned money. However , a question of fact exists as to whom the loan was made - the Defendant or Defendant's business , NATURAL PRODUCT AMERICA INC. (to which the $58 000. 00 check was written). On a motion for sumar judgment , the Cour may " search the record" . Here , attached as Exhibit " G" to the moving papers is the Defendant's Affidavit , which raises a triable issue of fact. If the loan was to the corporation , a necessar par is missing from this lawsuit. Furher , on the August 7 , 2007 signed " loan" document , a hand sketched diagram appears. Could this be par of the contract which the Defendant claims he had with the Plaintiff (first counterclaim)? The answer canot be determined on these papers. Accordingly, after due deliberation , it is ORDERED , that the Plaintiff's motion and the Defendant' s cross-motion , both for sumar judgment , are denied papers submitted. as there are triable issues of fact present which canot be resolved from the [* 6] The foregoing constitutes the Decision and Order of the Cour. Dated: Mineola, New York Februar 7 , 2012 Copies mailed to: Wong, Wong & Associates , P. Attorneys for Plaintiff Kevin Kerveng Tung, P. Attorneys for Defendant ENTERED FEB 10 2012 NASSAU COUNTY eOUMTY CLERK' S OFFICE

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