Sun Yi Choe v Hyusook Kim
Annotate this CaseDecided on July 22, 2013
Supreme Court, Queens County
Sun Yi Choe, Plaintiff,
against
Hyusook Kim a/k/a SOOK KIM, HYU, Defendant.
4157 2013
Frederick D.R. Sampson, J.
On March 22, 2010, Sun Yi Choe, plaintiff herein, loaned defendant Hyusook Kim, also known as Sook Kim, Hyu the sum of $50,000.00. On March 22, 2010, Kim executed a promissory note, whereby she promised to pay Choe the sum of $50,000.00, together with "12% annual percentage rate interest thereon, which the interest only payment of Five Hundred Dollars ($500.00) shall be payable in equal 12 months each, commencing on 22nd day of April, 2010, and continuing on the 22nd day of each month thereafter, until the 22nd day of March, 2011, on which date all outstanding principal and accrued interest, i.e. Fifty Thousand Dollars, ($50,000.00), shall be due and payable."
The promissory note provides, in pertinent part, as follows: "2. The holder of this Note may declare the entire unpaid amount of principal and [*2]interest under this Note to be immediately due and payable if Maker defaults in the due and punctual payment of any installment of principal and interest hereunder."
"3. Maker shall have the right to prepay the indebtedness evidenced by this Note, in whole or part, without penalty, upon ten days prior written notice to Payee. The installment payments provided for herein shall continue without change after any such prepayment".
"4. Maker, and all guarantor, endorsers and sureties of this Note, hereby waive presentment for payment, demand, protest, notice of protest, notice of nonpayment, and notice of dishonor of this Note. Maker and all guarantors, endorsers and sureties consent that the holder of this Note at any time may extend the time of payment of all or any part of the indebtedness secured hereby...".
The note also provided that in the event that an action was brought to enforce the note, the "Maker shall pay Payee all costs of collection and enforcement, including reasonable attorney's fees and court costs in addition to other amounts due."
Plaintiff states that the defendant utilized the loan proceeds to pay the down payment for the purchase of real property located at 4556 164th Street, Flushing, New York 11358. Plaintiff states that the defendant paid the sum of $1000.00 a month from April 22, 2010 through November 22, 2010, totaling $8,000.00, and that $6000.00 was applied to interest, and $2000.00 towards the principal; that from December 22, 2010 through March 22, 2011 defendant paid the sum of $500.00 a month, totaling $2000.00 and that this amount was applied towards the principal.
As of March 22, 2011, all 12 installments of interest had been paid, and the remaining balance of the principal was $46,000.00. Although the note had matured on March 22, 2011, it was apparently extended, as Choe accepted payments made by Kim, in the sum of $500.00 a month for the period of April 22, 2011 through July 22, 2011, totaling $2000.00. Kim, thereafter, made no further payments.
Plaintiff Choe commenced the within action on March 5, 2013. The first cause of action seeks to recover the sum of $49,520.00 on the promissory note, together with statutory interest of 9% from July 22, 2011, costs, disbursements and reasonable attorney's fees. The second cause of action alleges a claim for unjust enrichment. Plaintiff also filed a notice of pendency against the real property known as 4556 164th Street, Flushing, New York 11358.
Self represented defendant Hyusook Kim served an answer and interposed nine affirmative defenses and three counterclaims to cancel the notice of pendency, and recover damages; to cancel the notice of pendency and recover costs, disbursements and reasonable attorney's fees; and to cancel the notice of pendency and impose sanctions.
Plaintiff now seeks to strike defendant's answer and affirmative defenses and for
summary judgment on the claims against Kim and and to recover the sum of $49,520.00, together [*3]with statutory interest from July 22, 2011, costs, disbursements and reasonable attorney's fees. Plaintiff states that as of March 22, 2011, the principal balance was $46,000.00 and that the sums received thereafter, totaling $2,000.00, were applied towards the "annual interest balance of $5,520.00, calculated for 12% of the remaining principal balance of $46,000.00."
"A party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit" (CPLR 3211 [b]; see Galasso, Langione & Botter, LLP v Liotti, 81 AD3d 880, 882 [2d Dept 2011]). "[W]hen moving to dismiss or strike an affirmative defense, the plaintiff bears the burden of demonstrating that the affirmative defense is without merit as a matter of law' " (Greco v Christoffersen, 70 AD3d 769, 771, [2d Dept 2010], quoting Vita v New York Waste Servs., LLC, 34 AD3d 559, 559 [2d Dept 2006]). "In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference" (Fireman's Fund Ins. Co. v Farrell, 57 AD3d 721, 723 [2d Dept 2008] ). "However, where affirmative defenses merely plead conclusions of law without any supporting facts, the affirmative defenses should be dismissed pursuant to CPLR 3211 (b)" ( Fireman's Fund Ins. Co. v Farrell, 57 AD3d at 723 ). That branch of plaintiff's motion which seeks to dismiss defendants first, second, third, fourth, fifth, sixth, seventh and eighth affirmative defenses is granted, as defendant has merely pled conclusions of law without any supporting facts (see Morgenstern v Cohon, 2 NY2d 302 [1957]; Moran Enters., Inc. v Hurst, 96 AD3d 914[2d Dept 2012]; Fireman's Fund Ins. Co. v Farrell, 57 AD3d at 723). That branch of plaintiff's motion which seeks to dismiss the ninth affirmative defense, alleging failure to state a cause of action, is denied. "[N]o motion by the plaintiff lies under CPLR 3211 (b) to strike the defense [of failure to state a cause of action], as this amounts to an endeavor by the plaintiff to test the sufficiency of his or her own claim" (Butler v Catinella, 58 AD3d 145, 150 [2d Dept 2008]; Mazzei v Kyriacou, 98 AD3d 1088, 1088-1089 [2d Dept 2012]; CPLR 3211 [a] [7]).
The proponent of a motion for summary judgment carries the initial burden of presenting sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact (Alvarez v Prospect Hospital, 68 NY2d 32 923 [1986]). Once the proponent has met its burden, the opponent must produce competent evidence in admissible form to establish the existence of a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
To establish prima facie entitlement to judgment as a matter of law with respect to a promissory note, a plaintiff must show the existence of a promissory note executed by the defendant containing an unequivocal and unconditional obligation to repay and the failure of the defendant to pay in accordance with the note's terms ( see Sound Shore Med. Ctr. of Westchester v Maloney, 96 AD3d 823 [2d Dept 2012]; Jin Sheng He v Sing Huei Chang, 83 AD3d 788, 789 [2d Dept 2011]; Gullery v Imburgio, 74 AD3d 1022 [2d Dept 2010]). Once the plaintiff submits evidence establishing these two elements, the burden then shifts to the defendant to submit evidence establishing the existence of a triable issue with respect to a bona fide defense (see Pennsylvania Higher Educ. Assistance Agency v Musheyev, 68 AD3d 736 [2nd Dept 2009]; Quest Commercial, [*4]LLC v Rovner, 35 AD3d 576, [2nd Dept 2006]; Famolaro v Crest Offset, Inc., 24 AD3d 604 [2nd Dept 2005]; Bank of NY v Vega Tech. USA, LLC, 18 AD3d 678[ 2nd Dept 2005]).
Here, the plaintiff has met the prima facie burden of establishing one's entitlement to judgment as a matter of law by submitting the promissory note signed by the defendant, which provided that the defendant was to pay interest in the sum of $500.00 a month for a period of 12 months in equal installments, beginning April 22, 2010, and ending on March 22, 2011, at which time the entire loan amount of $50,000.00, plus any accrued interest was to be repaid, coupled with the plaintiff's affidavit asserting that the defendant continued to make payments of $500.00 a month from March 22, 2011 through July 22, 2011, and thereafter failed to pay the balance of the loan, in accordance with the terms of the note (see Jin Sheng He v Sing Huei Chang, 83 AD3d at 789).
The defendant has defaulted in answering this motion, and thus has not raised any triable issues of fact with respect to the promissory note. The court, however, finds that plaintiff improperly calculated the amount due on the promissory note. Plaintiff extended the maturity date of the subject note by accepting payments of $500.00 a month for the period of April 22, 2011 through July 22, 2011. However, the note does not provide for the extension of the monthly interest payments in the event that the maturity date was extended, nor does it provide for the payment of default interest. Rather, the note provides that interest was payable in 12 equal months, with a specific end date of March 22, 2011. Therefore the sums paid after March 22, 2011, totaling $2,000.00, should have been applied to the principal only, thereby reducing the balance due as of July 22, 2011, to the sum of $44,000.00.
Since the promissory note does not provide for the payment of a sum certain with respect to the recovery of an attorney's fee in the event of default in payment, the amount of such award will be determined at the hearing to be held in this matter ( Premium Assignment Corp. v Utopia Home Care, Inc., 58 AD3d 709 [2nd Dept 2009]).
In view of the foregoing, that branch of plaintiff's motion which seeks to strike defendant's answer is granted to the extent that the first, second, third, fourth, fifth, sixth, seventh and eighth affirmative defenses are dismissed, and is denied in all other respects. That branch of plaintiff motion which seeks summary judgment on the first cause of action for breach of the promissory note, is granted and plaintiff is entitled to enter a judgment in the sum of $44,000.00, together with interest at the rate of 9% per annum, from July 22, 2011. Plaintiff request for costs and disbursements is granted. The amount of attorney's fees shall be determined at hearing to be held in this part on September 18, 2013 at 10:00 am at 25-10 Court Square, Long Island City, NY 11101, room 208.
Dated: July 22, 2013...................................
J.S.C.
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