Duncan v Campbell

[*1] Duncan v Campbell 2013 NY Slip Op 52286(U) Decided on December 30, 2013 Civil Court Of The City Of New York, Kings County Ottley, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 30, 2013
Civil Court of the City of New York, Kings County

Angie Duncan AKA Apple, Plaintiff,

against

Loraine Campbell, Claudette Gordon, Defendant.



052297/13



Appearance of Counsel: The parties were self represented.

Lisa S. Ottley, J.

On November 1, 2013, this matter was heard by the Hon. Lisa S. Ottley. After trial, the Court finds as follows:

Plaintiff, Ms. Angie Duncan, commenced this action against the defendants, Lorain Campbell and Claudette Gordon, for the return $7,200.00 given by the plaintiff to the defendants who allegedly organized a sou sou, also known as a rotating savings club. Both plaintiff and defendants appeared pro se.

Plaintiff's Case:

The plaintiff, Ms. Duncan, testified before this court as to her claim for the return of monies allegedly paid into the rotating savings club organized by the defendants. Specifically, plaintiff testified that on April 13, 2013, she entered into a savings club, with Ms. Campbell as the organizer, and Ms. Gordon as the club's banker. Plaintiff testified that as a member of the club, she and other participants would give Ms. Campbell a prescribed sum of money each week, and Ms. Campbell would distribute the weekly pool of money collected, to each member of the club, on a rotating basis. Plaintiff testified that she held eight shares, or hands within the savings club. Plaintiff testified that each hand was valued at $50.00. Plaintiff further testified that she paid $400.00 each week to Ms. Campbell to maintain her eight hands in the club. Plaintiff testified that payments were to be made on or before 6:00 pm on the Sunday preceding [*2]each Saturday member payout. Plaintiff testified that each week a club member would receive a collected total of $4,500.00 cash. Plaintiff stated that August 24, 2013, marked the first of many turns in rotations upon which she was to receive that week's pool of money collected by Ms. Campbell.[FN1]

Plaintiff testified that because of plaintiff's alleged inability to physically reach and/or locate the defendants, the plaintiff did not pay the weekly $400.00 payment that was due on or before August 17, 2013. Plaintiff testified that she called the defendant, Ms. Campbell, to see if she could Western Union the money to her, but the defendant would not accept a Western Union payment. Plaintiff testified that on August 23, 2013, she called the defendant, Ms. Campbell, to arrange for the pick up of her $4,500 rotation payment. Plaintiff stated that Ms. Campbell advised plaintiff that the money was not available to her, that plaintiff had been removed from the savings club, and that other members in the club had taken over plaintiff's eight hands. Furthermore, the plaintiff testified that the defendant advised plaintiff that she would not get the $7,200.00 returned to her until after the savings club ends on December 27, 2014.

Plaintiff testified that while she did not have a written agreement with the defendants, other members did have written agreements with the defendants that provided for the following: Payments made after 6:00 PM on Sunday are considered late. Late payments will result in one of the following and no exceptions will be made: A. $25.00 penalty, in addition to the base weekly amount due; and B. Pay date will be rescheduled for a later date. See Plaintiff's Exh. "B."[FN2]

Plaintiff testified that it was her understanding, based on other member agreements, that by not timely paying the weekly $400.00 on or before August 17, 2013, she would only incur a $25.00 penalty per hand to be taken from her week's scheduled $4,500.00 rotation payout on August 24, 2013. Plaintiff stated that instead of the $25,00 late fee penalty, she was completely removed from the savings club and unfairly stripped of her hands by the defendants.

Plaintiff completed her testimony stating that she had no binding, written [*3]agreement with the defendant and that she had no receipts to show that she paid $50.00 per hand, $400.00 per week for a total of $7,200.00 into the savings club.

Plaintiff argued that as with the membership contracts of the other participants, she too should have only been penalized a $25.00 late fee taken from her week's $4,500.00 payout, or in the alternative, a lump sum of $7,200.00 should be returned to her immediately, and she should not have to wait for the savings club to end in December 2014.

Defendant Campbell's Case:

Defendant, Ms. Campbell, testified that the plaintiff, Ms. Duncan, was a savings club participant, that the plaintiff held eight hands, putting into the club $400.00 per week for eighteen weeks (April 13, 2013 to August 10, 2013) for a total of $7,200.00. Ms. Campbell testified that the plaintiff failed to make her weekly $400.00 payment on or before the due date of August 17, 2013.

Defendant stated that on Saturday, August 17, 2013, plaintiff informed defendant that she was at the airport, and could not get the $400.00 to her in person. Defendant testified that she would not accept a Western Union payment from the plaintiff. Defendant stated that on Sunday, August 18, 2013, she advised the plaintiff that she would wait at Ms. Gordon's hair salon for plaintiff to come and make her weekly payment, but the plaintiff never showed or communicated with the defendant about making the payment. Defendant testified that on Monday, August 19, 2013, she called the plaintiff and told her that she would be at the hair salon until 8 pm; again, plaintiff did not show to make her payment into the savings club.

Defendant testified that she made a final call to the plaintiff on Tuesday, August 20, 2013, and left the plaintiff a voice message stating that because plaintiff did not make her weekly payment, and because she had not advised defendant as to whether plaintiff planned on making the payment, by Tuesday evening, plaintiff would be removed from the savings club. Defendant testified that she heard nothing from the plaintiff and that by Friday, August 23, 2013, she sent a text blast to all the other participants advising them of plaintiff's removal from the savings club, and that plaintiff's eight hands were available for distribution starting August 24, 2013. Defendant testified that she used her own funds to cover plaintiff's weekly $400.00 until plaintiff's hands were taken over by other saving club members.

Defendant stated that on August 24, 2013, plaintiff called defendant requesting her $4,500.00 savings club payout. Defendant stated that she told plaintiff she was no longer in the savings club because plaintiff failed to pay her weekly payment on or before August 17, 2013, and failed to advise defendant as to whether plaintiff planned on paying her weekly payment. Defendant testified that she advised plaintiff that she would get all of her $7,200.00 saving club contribution back in installments, based on the same schedule rotation had she not be removed from the club. The defendant [*4]testified that the only difference in plaintiff's rotation schedule is that the August 24,

2013 payout went to the member who picked up plaintiff's hand, and in exchange, the plaintiff picked up that member's payout date of January 25, 2014.[FN3] The defendant testified that either plaintiff accept the rotation payout schedule or wait until the savings club ends December 27, 2014 to get the lump sum of $7,200.00. Defendant stated that she wrote a letter to the plaintiff explaining how plaintiff would be refunded, but that the plaintiff insists on getting the refund of $7,200.00 back "today" in one lump sum.[FN4]

Defendant completed her direct testimony stating that she does not deny the fact that plaintiff put $7,200.00 into the savings club, and that she planned on refunding that money to the plaintiff. Defendant testified that she does not have $7,200.00 "sitting around," but that she collects the club's money weekly, and each week the payout goes to the next member in the club's rotation.

Defendant Gordon's Case:

Co-defendant, Ms. Gordon, testified that she does not know why the plaintiff is suing her. Ms. Gordon testified that they were all friends, and that the plaintiff and co-defendant, Ms. Campbell, frequented her hair salon. Ms. Gordon stated that the plaintiff observed Ms. Gordon's participation in the saving's club, and plaintiff decided to join the club as well. Ms. Gordon testified that she has no knowledge of when the plaintiff joined the savings club, and at no time did she accept money on behalf of the club. Ms. Gordon further testified that she was not a proxy for the savings club.[FN5]

Discussion:

After careful review of the documents in evidence, and the testimony heard by this court from all parties, the court finds as follows:

The statute of frauds, as incorporated in section 5-701(a)(1) of the General [*5]

Obligations Law, provides that an agreement is void if it is not in writing and subscribed by the party to be charged therewith when the agreement, by its terms, is not to be performed within one year from its making. In order to remove an agreement from the application of the statute of frauds, both parties must be able to complete their performance of the contract within one year. See, Hamburg v. Westchester Hills Golf Club, Inc., 96 AD3d 802 (2nd Dept., 2012), Feist v. Mandell, 230 AD2d 662 ( 1st Dept., 1996).

In the case at bar, the statute of frauds bars plaintiff's recovery. The savings club began April 13, 2013 and will end December 27, 2014. While other members of the savings club signed written agreements, the plaintiff does not have a written agreement with the defendants, but a verbal agreement regarding plaintiff's participation in the club. As such, because the agreement between plaintiff and defendants cannot be performed within one year of its making, any verbal agreement between plaintiff and defendants is void; and accordingly, the statute of frauds remains a bar to plaintiff's recovery.

Assuming the statute of frauds was not a bar to plaintiff's claim, in order to create a binding contract there must be a meeting of the minds as to the essential terms of the agreement. See, Kentucky Fried Chicken of Middletown v. Rockland Lease Funding Corp., 173 AD2d 1066 (1991). In the case at bar, the court finds that there was a "meeting of the minds" between Ms. Duncan and Ms. Campbell in regard to plaintiff's participation in the savings club. The essential terms of the agreement, such as weekly payments, scheduled rotation dates, and late payment penalties were fully negotiated. Furthermore, the court finds Ms. Campbell's testimony notably credible in that she testified to the fact that the plaintiff was a member of the savings club, and that the plaintiff did put in a total of $7,200.00 over an eighteen week period, regardless of the fact that plaintiff did not have receipts to prove her $7,200.00 saving club contribution. Therefore, assuming arguendo that a contract did exist between the parties, plaintiff's failure to make the weekly payment of $400.00 to the savings club, on or before August 17, 2013 constitutes a material breach of that contract precluding plaintiff's right to enforce its terms. Additionally, plaintiff's argument in regard to only having to pay a $25.00 fee for late payments to the savings club, is not persuasive. Based on plaintiff's own testimony, she was not merely late in paying the August 17, 2013 payment, in fact, she never paid or even advised the defendant that she intended to pay the August 17, 2013 weekly payment at all. The defendant waited five days past the due date for plaintiff to make the weekly payment, and used her own funds to cover plaintiff's weekly $400.00 contribution on August 17, 2013. The defendant advised the plaintiff of her removal from the savings club upon the failure to pay the weekly fee, and defendant did nothing to cure her default.

Furthermore, under New York Law, in order to recover damages for breach of contract, the plaintiff is required to prove damages resulting from that breach, and

plaintiff's failure to do so is fatal to her cause of action. The plaintiff did not present proof, by way of receipts or any other evidence, establishing damages in the amount of $7,200.00. [*6]Defendant's admittance to the amount contributed by plaintiff, does not relieve the plaintiff of her burden of proving damages at trial. See, Alpha Auto Brokers, LTD. v. Continental Insurance Company, 286 AD2d 309 (2nd Dept., 2001).

Accordingly, after trial the court finds in favor of the defendants. Plaintiff's case is dismissed in its entirety.

This constitutes the decision of the court.

Court Attorney to notify.

Dated: Brooklyn, New York

December 30, 2013

___________________________

Lisa S. Ottley, A.J.S.C. Footnotes

Footnote 1:Ms. Duncan entered into evidence as Exh."A" her payout schedule, rotation, as follows: August 24, 2013(week 20, payout of $4500), January 4, 2014(week 39, payout of $4,500), February 22, 2014(week 46, payout of $9,000), May 31, 2014(week 60, payout of $4,500), June 21, 2014(week 63, payout $4500), October 18, 2014(week 80, payout $4,500), December 13, 2014(week 88, payout $4,500).

Footnote 2:Plaintiff's Exh. "B" is a membership contract between the defendant, Ms. Campbell and the co-defendant, Ms. Gordon.

Footnote 3:Defendant testified that on plaintiff's rotation days, as listed in footnote 1, plaintiff would share the $4,500.00 payout with the other member that picked up plaintiff's hand. On each listed rotation day, plaintiff would get the installment amount of $900.00 and the other member would get the balance of $3,600. Except for the February 22, 2014 rotation date, where plaintiff will receive $1,800.00(representing two hands) and the member will receive the balance of $2,700.00.

Footnote 4:Plaintiff denied receiving any mailed communication from defendant. Court verified plaintiff's current address, and matched it to the identical address on defendant's returned letter to plaintiff. Defendant's letter to plaintiff was entered into evidence as Exh. "A," and the returned addressed envelope was entered as Exh. "B."

Footnote 5:The court finds co-defendant, Ms. Gordon's testimony credible in regard to only being a participant in the savings club and not the banker as alleged by the plaintiff.