Cruz v Winitt

[*1] Cruz v Winitt 2007 NY Slip Op 52202(U) [17 Misc 3d 134(A)] Decided on November 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2006-1627 S C.

Mary Gilda Cruz, Respondent,

against

Marcie E. Winitt, Appellant. MARCIE E. WINITT, Third-Party Plaintiff-Appellant, JASON MICHAEL CRUZ, Third-Party Defendant-Respondent.

Appeal from a judgment of the District Court of Suffolk County, Second District (C. Steven Hackeling, J.), entered February 23, 2006. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $6,257.58 and dismissed the third-party complaint.

Judgment modified by deleting the provision dismissing the third-party complaint, and substituting therefor a provision directing entry of judgment in favor of the third-party plaintiff against the third-party defendant in the principal sum of $6,257.58; as so modified, affirmed without costs.

In this action, plaintiff Mary Gilda Cruz seeks to recover the balance due under a promissory note signed by defendant Marcie E. Winitt. Contrary to defendant's contention, the evidence adduced at trial established that plaintiff loaned the amount indicated in the promissory note at the behest of the defendant and, thus, there was sufficient consideration for the note (see UCC 3-408). Accordingly, there is no basis to disturb the portion of the judgment awarding plaintiff the principal sum of $6,257.58, the balance due under the note.

The third-party complaint should not have been dismissed. In the third-party action, the third-party plaintiff sought to recover from plaintiff's son, Jason Michael Cruz, for breach of contract. Marcie Winitt and Jason Cruz had signed a three-year lease to share an apartment together. Winitt testified that Jason Cruz agreed to pay 50% of the rent. Winitt further testified [*2]that when Jason Cruz moved out of the premises after a year, she and Jason Cruz agreed that she would be solely responsible to pay the rent and that Jason Cruz would repay the balance due under the promissory note. In our view, the weight of the evidence established that there was such an agreement between Winitt and Jason Cruz which governs their rights and obligations. Since Jason Cruz breached the contract, as modified, when he failed to pay the installments due under the promissory note held by his mother, Mary Gilda Cruz, Winitt is entitled to
recover the principal sum of $6,257.58 against third-party defendant Jason Michael Cruz.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: November 19, 2007