Tsunis v Puglia

[*1] Tsunis v Puglia 2006 NY Slip Op 51096(U) Decided on June 8, 2006 Supreme Court, Suffolk County Werner, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 8, 2006
Supreme Court, Suffolk County

George Tsunis, Plaintiff(s),

against

Theresa E. Puglia, Defendant.



25159-04



PINKS, ARBEIT, BOYLE & NEMETH, ESQS.

Attorneys for the Plaintiff

By: Steven G. Pinks, Esq.

140 Fell Court

Hauppauge, New York 11788

WALDINGER ASSOCIATES, P.C.

Attorneys for the Defendant

By: Ellen M. Sundheimer, Esq.

One Old Country Road, Suite 282

Carle Place, New York 11514

Mary M. Werner, J.

Upon the following papers read on this motion: Notice of Motion and Supporting Papers 1- 9 and Exhibits A-R; Answering Affidavits and Supporting Papers 10-13; Replying Affidavits 14-19 and Exhibit A; it is

ORDERED that the motion of the defendant (seq. #

003) for summary judgment in her favor and dismissing the complaint of the plaintiff pursuant to CPLR § 3212 is granted, the complaint is dismissed and defendant's counterclaim is severed and continued.

In this action, plaintiff, George Tsunis, seeks to recover on certain promissory notes executed by defendant in the years 1999 and 2000 requiring payment of certain [*2]sums to him personally. It is uncontested that defendant, Theresa E. Puglia was working with George Tsunis Real Estate, Inc. "as a consultant and real estate agent" between January of 1999 and February 2000. Plaintiff is the president of George Tsunis Real Estate, Inc.

Defendant answered the complaint pro-se alleging that the promissory notes at issue reflected amounts paid in advance by checks for expected commissions to be earned by defendant and that they were repaid by the receipt of the amount of the expected commissions by plaintiff in his capacity as president of George Tsunis Real Estate, Inc. Defendant further asserted a counterclaim against plaintiff for the amount of $214,000.00 in unpaid earned real estate commissions. The Court, by Decision and Order dated March 23, 2005, granted plaintiff's motion for an order pursuant to CPLR § 3024 compelling defendant pro se to correct her answer and counterclaim to the limited extent that the pleading shall be deemed amended to delete the phrase: "Mr. Tunis is not well respected in the industry" and otherwise denied the motion. Defendant has secured counsel.

During discovery, in response to demands, plaintiff has provided the only checks in possession of the plaintiff made payable to defendant on the account of George Tsunis Real Estate, Inc., copies of the promissory notes, and three Form 1099s furnished to defendant for the years of 1999 and 2000. Defendant demanded any documents relating to the consideration furnished for the promissory notes made payable to plaintiff personally. Plaintiff has provided only the aforesaid documents.

On this motion, defendant has provided the Court with copies of the promissory notes, checks, and three Form 1099's furnished to defendant reflecting "non employee compensation". Defendant by her affidavit alleges that the promissory notes, referred to only as "statements" by defendant, were executed at the behest of her employer George Tsunis, who was acting, to [her] knowledge, as president of George Tsunis Real Estate, Inc.", upon receipt of "advances" of "certain sums of money in anticipation of work to be performed", that the checks "reflected the names of real estate transactions on which I was working where commissions would be owed to me"; and that "over the course of [her] employment with George Tsunis" she "earned commissions in excess of what had been advanced" and that "the excess has never been paid to me". Notably, she avers that the "statements" (promissory notes) were signed at the request of George Tsunis "who stated that he had been instructed in this regard by his accountants".

On a motion for summary judgment, the moving party has the burden of making a prima facie showing of entitlement to summary judgment as a matter of law and must offer sufficient evidence to show the absence of material issues of fact. If the moving party fails in meeting this burden, summary judgment must be denied. If, however, this burden is satisfied, then the burden shifts to the opposing party who must establish the existence of material issues of fact requiring a trial (see, Romano v. St. Vincent's Medical Center, 178 AD2d 467, 577 NYS2d 311 [1984]. In order to grant summary judgment it must clearly appear that no material issue of fact has been presented. Hegy [*3]v. Coller, 262 AD2d 606, 692 NYS2d 463 (2d Dept [1999]). Conclusory assertions will not suffice to defeat a motion for summary judgment. Barclays Bank of New York v. Sokol, 128 AD2d 492, 512 NYS2d 419 (2d Dept 1987). An attorney's affirmation is without evidentiary value in opposition to a motion for summary judgment, where the attorney has no personal knowledge of the facts. Deronde Products, Inc. v. Steve General Constr., Inc., 302 AD2d 989, 755 NYS2d 152 (4th Dept 2003). Plaintiff has not submitted an affidavit on this motion.

Review of the evidence submitted by defendant reveals that the promissory notes correlate to the checks drawn on the account of George Tsunis Real Estate, Inc. and that the total amount of income reported by George Tsunis Real Estate, Inc. (to have been earned by defendant as reflected on the Form 1099s) is greater than the total amount of the checks. Although each of the promissory notes is dated only with a year, the connection between the promissory notes and the checks is established by the dates of the checks and the due dates of the promissory notes (one year after the date of execution) and the amounts of the checks and promissory notes. The notations on the checks are an acknowledgment that the amounts were for commissions earned and there is no evidence that defendant was paid twice the same commission (once in advance supporting the applicable promissory note or notes and a second time after the commission was collected by plaintiff). The amounts of the promissory notes correlate almost exactly with the amounts advanced for commissions on transactions on which defendant asserts she was working when the checks were issued.

The total of the promissory notes is $37,127.00 for the year of 1999.[FN1] The total [*4]amount of the checks for 1999[FN2] is $37,234.21. The difference is only $106.83. Significantly, the Form 1099 from George Tsunis Real Estate, Inc. reports $40,627.00 in "non-employee compensation", and therefore reports that plaintiff earned $2,892.79 more than the amount of the 1999 checks provided on this motion (even including the $500 Christmas check) and there is no record of this amount being paid to defendant. Additionally, the separate 1999 Home Finders Form 1099 reports $2,314.75 as "nonemployee compensation" and there is no check provided to establish that defendant was paid this amount either. Therefore, based upon the documentary evidence provided on this motion, plaintiff reported that defendant earned $5,207.54 more than the compensation actually reflected in the total of the checks made payable to her. The combined sum of both of these Form 1099s is $42,941.75 and exceeds the amount of the promissory notes signed in 1999 by $5,814.75. There is no other evidence of payment to defendant in 1999. Thus, based upon this documentary evidence, for defendant to have been required to pay taxes on the amount of $42,941.75 as earned income in 1999, she must have earned the commissions as reflected on the checks issued to her in 1999. Review of the 2000 documents reveals a similar correlation between the single promissory note and Check #

5878 and the amount of non employee compensation reflected on the Form 1099 matches exactly the amount of the two checks issued to defendant in 2000. [FN3]

The Form1099 provided for 2000 from George Tsunis Real Estate, Inc. is for $8870.00, which is exactly the sum of the $6,000.00 check (#

5950), for which there is no corresponding promissory note, and Check #

5878 in the amount of $2870.00. Thus, for defendant to have been required to pay taxes on the amount of $ $8870.00 as earned income in 2000, she must have earned the commission as reflected on the checks issued to her in 2000. The Court observes that although the first note is allegedly due and owing on February 1, 2000, plaintiff did not [*5]deduct this amount from Check #

5950, defendant was paid her full commission, without a corresponding promissory note, in an amount double the amount she would have been required to pay under the first promissory note, if in fact, the amount was still due and owing to plaintiff as the holder of the note. Therefore, the defendant has submitted proof in admissible form warranting summary judgment in her favor in the absence of any contradictory proof.

In opposition to this motion, plaintiff provides only the affirmation of his counsel arguing that plaintiff has established a prima facie case by production of the subject promissory notes and an allegation of default in the complaint. Plaintiff cites cases decided upon motions for summary judgment in lieu of complaint pursuant to CPLR § 3213, which are in opposite to this motion made by the defendant for summary judgment pursuant to CPLR § 3212. While it may be true that on a motion pursuant to CPLR § 3213, a plaintiff makes "a prima facie showing of entitlement to judgment as a matter of law under CPLR § 3213 by demonstrating the existence of the promissory note executed by the defendants, the unconditional terms of repayment, and the defendants' default thereunder" and "thus shifts the burden to the defendant to establish "by admissible evidence the existence of triable issues of fact or a meritorious defense" (Haselnuss v. Delta Testing Lab., 249 AD2d 509, 509-510 [2nd Dep't, 1998]), plaintiff has made no such motion. It is defendant who has moved pursuant to CPLR § 3212 and has produced documentary evidence supporting judgment in her favor.

Plaintiff has not submitted his own affidavit to contradict or raise a factual issue with respect to the defendant's allegations that he is attempting to collect personally on promissory notes executed "on the advice of his accountant" where his business issued the checks as consideration and the amounts furnished were reported as "non-employee compensation" on the Form 1099's furnished to the defendant and upon which she paid income taxes. His attorney merely argues that it is incumbent upon the defendant to prove that she repaid the promissory notes in the face of clear documentary evidence supporting her position that she repaid the amounts advanced by the receipt by George Tsunis Real Estate, Inc. of these amounts on the real estate transactions when they were completed. The verified complaint states only in conclusory fashion that defendant "defaulted in paying all of the promissory notes described above." There is no response to defendant's allegations that the amounts set forth in the checks alleged by plaintiff to be consideration for the promissory notes reflect actual amounts of commissions earned by defendant. The Court observes that in response to discovery demands, plaintiff has asserted that it has no other checks payable to defendant, nor has plaintiff even alleged that defendant did not earn the commissions as reflected on the checks provided. The Court has reviewed and compared the documents provided by plaintiff, which plaintiff has, through his attorney, admitted are the only evidence of consideration underlying the promissory notes. No money is alleged by plaintiff to have been provided personally by plaintiff to defendant.

Based on the undisputed facts, the Court finds that defendant has adequately demonstrated that plaintiff is seeking to recover on promissory notes that were actually repaid when plaintiff collected the expected commission on the real estate transaction on [*6]which defendant was due a commission. There is no evidence submitted on this motion to support plaintiff's bald allegation that defendant defaulted in payment of the promissory notes. There being no triable issue of fact for resolution by a jury, summary judgment in favor of defendant is granted and the complaint of the plaintiff is dismissed. The counterclaim of the defendant for unpaid commissions in the amount of $214,000.00 is severed and continued.

Submit judgment.

MARY M. WERNER, J.S.C. Footnotes

Footnote 1: The first seven promissory notes (dated only "1999" for the exact amount of $3,000.00 payable on the first of the months of February - August, 2000) correspond to checks: # 4954 (dated January 29,1999, amount $3126.75, notation: "com earned SCDPWYaphank"); # 5031 (dated March 1,1999, amount $3,240.00, notation: "com earned public storage 6%"); # 5082 (dated March 25, 1999, amount $2,633.25, notation based on the:"com earnedMoonlite"); # 5142 (dated April 22, 1999, amount $2873.58, notation: com earned sportique"); # 5249 (dated May 27, 1999, amount $3,345.78, notation "com earned 1st industrial); # 5335(dated June 25, 1999, amount $3650.00, notation "com earned Behrs"); # 5398 (dated July 22, 1999, amount $3273.47 notation "com earned Boulder"). These checks total $22,142.83. The eighth promissory note dated only "1999" requires payment of $1,036.00 on August 1, 2000 and there is no corresponding check issued to defendant. As the difference between the totals of the seven checks and the seven promissory notes is $1,142.83, there is only a difference of $106.83 between this amount and the amount of the eighth promissory note. Thus, it appears that the eighth promissory note guarantees the difference between the amounts to be earned as commissions and the amounts provided in advance to defendant as of July 22, 1999 in view of the exact correlation between the remaining four pairs of promissory notes executed in the remaining months of 1999 and a single promissory note in January of 2000 which correlate exactly to the amounts of the corresponding checks made payable to defendant on the account of George Tsunis Real Estate, Inc. [The first pair of promissory notes, dated "1999", require payment on September 24, 2000 of the separate amounts of $3,000.00 and $956.00 and correlate exactly to the whole dollar amount of Check No. 5554 of $3,956.38 for "com earned Thuro Metals" Ocean Graphics" dated September 24, 1999. The second pair, a note dated "1999" requiring payment of $3000.00 on "Nov 1st, 2000" (on which the amount as originally written is clearly $3,246.00) and a second note dated "1999" requiring payment of $246.00 on Nov 1st, 2000, correlated exactly to Check No.# 5644 dated October 29, 1999 for "com earned Ocean Graphics" in the amount of $3,246.00. The third pair dated "1999" require payment on November 18, 2000 of the separate amounts of $3,000.00 and $894.00, and correlate exactly to the sum stated on Check # 5702 of $3,894.00 for "com earned Ocean Graphics" dated November 18, 1999. The fourth pair dated "1999" require payment on December 22, 2000 of the separate amounts of $3,000.00 and $995.00 and correlate exactly to Check # 5802 dated December 21, 1999 in the amount of $3,995.00 for "com earned 10 Wilcox"].

Footnote 2: With the exception of Check # 5809 in the amount of $500.00 with a notation of "Merry Christmas".

Footnote 3: The final promissory note is dated only "2000" and requires payment of $2,870.00 on January 21, 2000 (rendering the amount of $2,870.00 promised to be paid due upon the same day as the amount is provided to defendant). The corresponding check is # 5878 dated January 21, 2000 in the same amount of $2,870.00 and bears a notation of "comm earned 638 Vets." The final check provided has no matching note and is # 5950 dated February 16, 2000 in the amount of $6000.00 and bears a notation" "com earned MNewHyde Park".