Siebert v Dermigny
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Siebert v Dermigny 2007 NY Slip Op 34564(U) May 22, 2007 Supreme Court, New York County Docket Number: 117696/05 Judge: Walter B. Tolub Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF T~E STATE OF NEW YORK COUNTY OF NEW YORK:', IAS PART 15 ------------------~---------------------x MURIEL SIEBERT., Index No.117696/05 Findings of Fact and Conclusions of Law Plaintiff, -againstNICHOLAS DERMIGNY, Defendant. ----------------------------------------x WALTER B. TOLUB, J.: ... This constitutes this court's findings of conclusions of law after the trial on January 29th.and 30th, 2007. Plaintiff, Muriel Siebert, sued Defendant, Nicholas Dermigny, to recover an unpaid loan in the amount of $105,000. Plaintiff claims she loaned the Defendant the money as a downpayment for an apartment in 2004. Defendant claims that the money was reimbursement of the rent promised to him for his Jersey City apartment. FINDINGS OF FACT Plaintiff is the principal shareholder and chief financial officer of Siebert Financial Corp. and Muriel Siebert & Co., Inc., a registered broker-dealer the specializes in discount brokerage services. Defendant was employed by Siebert & Co. from 1989 until September 2005. During the period of 2002 through [* 2] 2005, Defendant was the company's chief operating officer and most senior executive in the company after Plaintiff. Plaintiff brought this action to recover an unpaid loan in the amount of $105,000. The trial testimony presents two starkly different and conflicting versions of the facts. Plaintiff testified that she loaned Defendant $105,000 in March 2004 in response to his request for a 25% cash portion of the purchase price of a co-op in Manhattan. Plaintiff testified that she loaned the Defendant the money without a written agreement and that even though Defendant agreed to repay her, the loan has not been repaid despite the demand for payment. pefendant testified that the loan was not a loan, but rather a repayment by Plaintiff of business expenses, namely rent, accrued over a period of four years and three months. Compounding and complicating the issues presented is Defendant's belief that Plaintiff has engaged in securities law violations and that this lawsuit is an attempt to get "even" with the Defendant. The Defendant communicated his belief to Muriel Siebert & Co.'s outside counsel as well as the Attorney General. Plaintiff's position is that the only time Defendant denied that the money was a loan, was in 2005 after being fired from his position and after bringing a Sarbanes-Oxley retaliatory proceeding against the Plaintiff. The court finds that neither Plaintiff's nor Defendant's 2 [* 3] . . testimony was credible because the Plaintiff bears the burden of proof. (Dan-Nor Realty v. Kleinport Realty Corp., 114 NYS2d 338 [Sup. Ct. 1952]). The claims must fail and the Complaint must be dismissed. CONCLUSIONS OF LAW Plaintiff has failed to overcome the presumption that the check represented an obligation she had to the Defendant and was not loan as she contends. There is a longstanding principle that the presumption arising from the delivery of a check is that it was tendered in payi;nent of a debt and not as a loan. (Leask v. Hoagland, 205 NY 171 [1912]; In Re Effross, 43 AD539 [1st Dept 1973]). In the of other evidence, a loan is not presumed abs~nce from the making of a check, there must be evidence that the payment was intended as a loan. [1st Dept 1915]). overcome the (Marks v. Kellogg, 170 AD 468 Care must be given in considering evidence to presum~tion that the check tendered by the Plaintiff represented some debt or obligation owed. (Koehler v. Adler, 78 NY 2 8 7 [ 18 7 9] ) • Plaintiff has failed to overcome the presumption that the check was not a loan. Plaintiff did not (1) note the purpose of the check in the check's memo line; (2) have a written agreement with the Defendant; and (3)Plaintiff failed to demand payment when $100,000 bonuses were given to Defendant. 3 [* 4] i I Accordingly i~ is I ORDERED the action is dismissed in its entirety. i Dated: 1u./ I D 7 HON. WALT~B. TOLUB, J.S.C. • .. •\ ~,..._ \ 4
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