Davis v Marte

[*1] Davis v Marte 2018 NY Slip Op 50007(U) Decided on January 5, 2018 Supreme Court, New York County Reed, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 5, 2018
Supreme Court, New York County

Warren Davis, Plaintiff,

against

Jose Marte, Defendant.



654575/2016



For Plaintiff:

STEPHEN CARL NAPPI

Goidel & Siegel, LLP

56 West 45th Street, 3rd Floor

New York, NY 10036

For Defendant:

Jose Marte

Appearing Pro Se
Robert R. Reed, J.

Plaintiff and defendant entered into eight separate written agreements (promissory notes) between July 15, 1992 and August 20, 1998 in which plaintiff agreed to lend defendant certain sums of money and by which defendant promised to repay those monies, on particular terms, in installments, with each agreement including an express maturity date for that particular loan. The most recent maturity date under any of those promissory notes was May 20, 2002. The complaint, filed for the first time on August 30, 2016, alleges that defendant has yet to repay the amounts due under the promissory notes, despite demand, and seeks to recover money damages under causes of action labeled as breach of contract, promissory estoppel, unjust enrichment, and fraud. In his answer, filed December 6, 2016, defendant, appearing pro se, asserts as an affirmative defense the following: "Plaintiff's claims for a note or other obligation that allegedly occurred more than six years ago, thus is time barred as per CPLR 213."

Defendant now moves to dismiss, arguing that this action is time-barred in accordance with CPLR 213. Plaintiff opposes, arguing that the motion (1) if viewed under CPLR 3211, is untimely; (2) fails to attach a copy of the complaint and, therefore, is procedurally defective; (3) whether viewed under CPLR 3211 or CPLR 3212, fails to meet its prima facie burden; (4) is premature, given that no discovery has yet occurred in this litigation, and (5) fails [*2]because, as a matter of fact, each of plaintiff's causes of action is indeed timely.

A cause of action for breach of contract must be commenced within six years (CPLR 213 [2]). The cause of action accrues at the time of the breach (John J. Kassner & Co. v City of New York, 46 NY2d 544 [1979]). When the cause of action is one to recover a sum of money owed pursuant to contract, the cause of action accrues when plaintiff possesses the legal right to demand payment (see Verizon NY Inc. v Sprint PCS, 43 AD3d 686 [2007]). Here, at the latest, the cause of action for breach of contract accrued, based on the plain language of the complaint, on May 20, 2002 — more than 14 years before the commencement of this action — on the most recent maturity date of any of the eight promissory notes, as stated in the complaint itself (see Complaint, paras. 47, 51). Thus, the complaint's breach of contract cause of action has long been time-barred.

CPLR 3211 (a)(5) authorizes a party to move for judgment dismissing one or more causes of action against him on the ground "the cause of action may not be maintained because of statute of limitations." CPLR 3211 (e) does not, as plaintiff contends, require that such motion be made prior to service of defendant's answer. Rather, such a defense is waived if raised neither in a pre-answer motion nor in the responsive pleading. Here, defendant's answer expressly asserts as an affirmative defense that plaintiff's claims are "time barred as per CPLR 213." Therefore, there was no waiver of this defense — and, thus, defendant's motion is timely.

That pro se defendant fails to attach a copy of the complaint to his moving papers will not preclude judgment in his favor. This is an e-filed matter, and, as such, the technical failure to attach a copy of the complaint to this dispositive motion is not a material impediment for the court and certainly does not pose any actual prejudice to plaintiff — who, indeed, attaches a copy of the complaint to his papers opposing the motion.

Plaintiff's argument that pro se defendant fails to meet its prima facie burden is belied, as observed above, by the plain language of the complaint, which articulates with specificity that the maturity date of the most recent of the subject promissory notes was May 20,2002. "[C]ourts generally allow pro se litigants some leeway on the presentation of their case" (Stoves & Stones v Rubens, 237 AD2d 280 [1997]). Defendant supports his motion with defendant's own affidavit, which attaches a copy of the most recent of the subject promissory notes. Any fair reading of that affidavit, its attached exhibit, and the pleadings allows the conclusion that a prima facie burden pursuant to CPLR 3212 has been met with respect to a defense based on the statute of limitations. Plaintiff's affidavit in opposition, moreover, only confirms the lateness of this action, while vaguely asserting broken oral promises long after the fact to make good on the past debt. Notably, plaintiff's opposing affidavit (like the complaint itself) is devoid of language about any monies received from defendant after the most recent maturity date or any reference to any writings after the last maturity date in which the parties agreed upon forbearance terms — such as might be read to extend the accrual date beyond May 20, 2002. See Gen. Oblig. Law section 17-101 ("An acknowledgment or promise contained in a writing signed by the party to be charged thereby is the only competent evidence of a new or continuing contract whereby to take an action out of the operation of the provisions of limitations of time for commencing actions under the civil practice law and rules .") (emphasis added).

Plaintiff's argument that defendant's motion is premature is hollow. Plaintiff does not, and cannot realistically, point to any evidence herein that is unavailable to him or in the exclusive possession or control of defendant. Here, the complaint seeks relief based upon the [*3]existence of a series of promissory notes signed by defendant and tendered to plaintiff. Such notes would in the natural order of things be in plaintiff's possession — as would, one assumes, any writings agreeing to any forbearance regarding such notes. Moreover, it is worth observing on this point, first, that almost nine months had passed between the time defendant filed his answer and the time defendant initiated this motion, and, second, that plaintiff in his opposition fails to identify any unanswered or outstanding discovery requests he has served upon defendant.

The complaint's promissory estoppel, unjust enrichment and fraud causes of action are all derivative of the breach of contract cause of action — and, thus, stand on no firmer ground. A promissory estoppel claim is not viable where the conduct underlying the claim is governed by contract, and where the plaintiff fails to allege a duty independent of the contract (Coleman & Assoc. Enters., Inc. v. Verizon Corporate Servs. Group, Inc., 125 AD3d 520, 521 [1st Dep't 2015]; Saivest Empreendimentos Imobiliarios E. Participacoes, Ltda v. Elman Invs., Inc., 117 AD3d 447, 449 [1st Dep't 2014]). The doctrine of unjust enrichment invokes an "obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties concerned" (IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 142 [2009]). Because a series of contracts governs the subject matter in dispute, plaintiff's unjust enrichment claim fails as a matter of law (see Pappas v Tzolis, 20 NY3d 228, 234 [2012]).

A fraud claim is redundant where it arises out of the same facts as the breach of contract claim, and alleges nothing more than that the defendant never intended to perform the promises alleged in the contract (Sudul v Computer Outsourcing Servs., 868 F. Supp. 59, 62 [SD NY 1994]). A fraud collateral to a contract arises only when a duty extraneous to the contract is breached (Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., 70 NY2d 382, 389 [1987]). An allegation that a defendant lied about his intention to perform a contract does not state a cause of action for fraud (Hawthorne Group, v RRE Ventures, 7 AD3d 320, 323-324 [1st Dep't 2004]). Rather, it states a cause of action for breach of contract (Rochelle Assoc. v Fleet Bank of NY, 230 AD2d 605, 606 [1st Dep't 1996], lv denied 89 NY2d 1030 [1997]). Plaintiff in this action alleges, in substance, no more than that defendant did not intend to perform the agreements when he made them. The complaint fails to assert any duty extraneous to the promissory notes that defendant breached. Plaintiff may not use vague and conclusory assertions of fraudulently expressed oral requests for forbearance as an end-run around the express requirements of Gen. Oblig. Law section 17-101, referenced above.

Finally, to state a claim for fraud, a plaintiff must allege "a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury" (Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 [1996]). CPLR 3016 requires that these elements of fraud be pleaded in detail (see Salles v Chase Manhattan Bank, 300 AD2d 226, 235 [1st Dep't 2002]). To survive a motion to dismiss, the complaint must make factual allegations sufficient to support each element of a cause of action for fraud (Kaufman v Cohen, 307 AD2d 113 [1st Dep't 2003]). Given the detailed history of non-payment set forth in the complaint, any assertion in the complaint of justifiable reliance upon defendant's alleged fraudulently expressed oral requests for forbearance simply strains credulity. Perhaps more importantly for purposes of this motion, and bearing in mind the requirements of CPLR 3016, it is worth observing that the only instance of alleged misrepresentation specified by date in the complaint (other than the dates on which the promissory notes were executed) comes by way of a "telephone conversation" purported to have [*4]taken place sometime in "June 2016." To the extent, that any misrepresentation with respect to forbearance and repayment was made long after the limitations period for any contract cause of action had already expired, the complaint ultimately fails to state an actionable "injury."

Accordingly, it is hereby

ORDERED that defendant's motion to dismiss the complaint as time-barred, in accordance with CPLR 213, is GRANTED, and, therefore, the Clerk, pursuant to CPLR 3211 (a) (5) and CPLR 3212, is directed to dismiss the complaint herein with prejudice and to enter judgment accordingly; and it is further

ORDERED that defendant's vaguely worded counterclaim is dismissed, without prejudice to refiling under a separate index number, with payment of any necessary filing fee, should defendant, after careful consideration of the consequences of filing a potentially frivolous pleading, be so inclined.

Dated: January 5, 2018