Bell v Taylor

[*1] Bell v Taylor 2007 NY Slip Op 51344(U) [16 Misc 3d 131(A)] Decided on July 3, 2007 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 3, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2006-1788 S C.

Myron Bell, as ATTORNEY IN FACT FOR MARSHALL BELL, SR., Respondent,

against

Charissa Taylor, Appellant.

Appeal from a decision of the District Court of Suffolk County, Third District (C. Steven Hackeling, J.), dated May 30, 2006, deemed an appeal from a judgment entered pursuant thereto on June 16, 2006 (CPLR 5520 [c]). The judgment, after a nonjury trial, awarded plaintiff the principal sum of $5,000.

Judgment affirmed without costs.

Substantial justice was done in this small claims action for money due in accordance with the rules and principles of substantive law (UDCA 1804, 1807). As it was entitled to do, the court credited the testimony of Myron Bell, who testified from personal knowledge of the circumstances at issue that a $7,500 check written by his father and given by Myron Bell to defendant was a loan, and not given in repayment of any debts owed by the Bells to defendant (see Lipton v Wagner, 57 AD2d 889 [1977]; Legale v Moura, 14 Misc 3d 10 [App Term, 9th & 10th Jud Dists 2006]). The record indicates that the court did not permit Myron Bell to testify improperly, as alleged by defendant upon appeal. He testified that defendant told him that she did not have the money to repay and did not know when she might have it. It should further be noted that the appearance of Myron Bell on behalf of his father was permissible (see UDCA 1815).

Contrary to defendant's contention, the statute of frauds (General Obligations Law § 5-701) does not render the oral loan agreement unenforceable. There is no evidence in the record [*2]that the term of the loan was greater than one year or that it otherwise could not be performed within one year; on the contrary, testimony indicated that the term was to be far less than a year. As long as such an oral agreement is performable within one year, the statute of frauds will not invalidate it (see General Obligations Law § 5-701 [a] [1]; Lipton v Wagner, 57 AD2d 889, supra).
Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: July 03, 2007