CF Notes, LLC v Goldman

CF Notes, LLC v Goldman 2015 NY Slip Op 04384 Decided on May 21, 2015 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 May 21, 2015
Tom, J.P., Friedman, DeGrasse, Richter, JJ.
15175 159670/13

[*1] CF Notes, LLC, Plaintiff-Respondent,

v

Irvin Goldman, Defendant-Appellant.

Spears & Imes LLP, New York (Joanna C. Hendon of counsel), for appellant.

Michael S. Popok, New York, for respondent.

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered November 5, 2014, which denied defendant's motion to dismiss the complaint as time-barred, unanimously affirmed, with costs.

In this action to recover on a promissory note made by defendant in favor of plaintiff CF Notes, LLC, an affiliate of defendant's then-employer, Cantor Fitzgerald & Co., the first paragraph of the note provides that defendant unconditionally promises to pay the monies loaned to him "on such date as Payee may demand." The second paragraph, however, identifies certain contingencies, including defendant "ceas[ing] to be employed by" Cantor Fitzgerald, that would render the note automatically due and payable "without notice or demand." The motion court properly harmonized these conflicting provisions "so as not to leave any provision without force and effect" (Isaacs v Westchester Wood Works, 278 AD2d 184, 185 [1st Dept 2000]) in finding that the note is a "demand note" that converted to a contingent note upon the happening of one of the enumerated events listed in the second paragraph. Thus, as the motion court determined, defendant's note was payable upon his resignation from Cantor Fitzgerald on October 22, 2007, and it was on this date that the statute of limitations began to run (see DDS Partners v Celenza, 6 AD3d 347, 348 [1st Dept 2004]; Pine v Okoniewski, 256 AD 519, 521 [4th Dept 1939]). [*2]Accordingly, the complaint was timely filed on October 21, 2013 - one day prior to the expiration of the six year statute of limitations (see CPLR 213[2]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 21, 2015

CLERK