Spllman v Matyas
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Spllman v Matyas 2019 NY Slip Op 33222(U) October 17, 2019 Supreme Court, Kings County Docket Number: 515144/17 Judge: Wayne P. Saitta Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] KINGS COUNTY CLERK 10/29/2019 12:59 PM INDEX NO. 515144/2017 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 10/29/2019 At an the State IAS at the Kings, New N P R E S E Part Term, of New York, York, 29 of held the Supreme in and for at Civic Courthouse, 17th on the of the Center, Court of County of Brooklyn, Odob 2019. T: . . WAYNE HON. P. SAITTA, Justice. --------.-------------------- SHEYA - - - --- -X SPlLMAN, Plaintiff, - against YOEL DOVID - Index No. 515144/17 MATYAS, Defendant. -------------------------The e-filed following Notice Petition/Cross Motion Affidavits Affidavits Memoranda of defendant exists; the motion Pacers Numbered 62-81 83-84, Cause/ and Annexed 86-96 109-116 82 Dovid (2) against in this papers, foregoing Matyas sequence 'Plaintiff's judgment Show (Affirmations) judgment and -X herein: Law Yoel summary read (Affirmations) Upon under to (Affirmations) Opposing Reply naners of Motion/Order Affidavits --- - -- --- requiring motion defendant. for four, defendant defendant also This an on to pay sought all of order: the an order, brñch by plaintiff to recover (defendant) number against action monies (1) ground of his plaintiff's and no to CPLR motion was to genuine 3212, 3215, resolved issue with granting moves, him granting material associated 120 against plaintiff him, to CPLR costs 108 Spilman(plaintiff) owed pursuant that fees pursuant Sheya 85 this him by an order of action.1 a default dated (continued...) 1 of 20 fact [*FILED: 2] KINGS COUNTY CLERK 10/29/2019 12:59 PM INDEX NO. 515144/2017 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 10/29/2019 Defendant under moves, him granting motion sequence judgment summary October defendant to plaintiff the the was was a container was to.be The of Agreement). The a packaging business known "a First to from full China partner in Agreement set business." the this particular forth that First him. of plaintiff Agreement set and Agreeñ that was to invest from China, forth the ent which in business, provided arises that from in the $68,000 that and Packaging, into money First entitled agreement, as Exclusive The business, an into sum a certain invest for to CPLR3212, against entered First plaintiffj "ask[ing buy future." owner sole pursuant Background defendant and (the Partnership defendant order plaintiff 2014, Agreemcnt" "Limited that 22, an order, complaint Procedural and for five, plaintiff's dismissing Facts On number it in business . to enable the required to purchase "manage partners in [the] decision The of the gross when First Agreement profit of it so The First the goods not mix to Agreement to comes as of [a] stated the profit the up that or to that funds of "[t]he and container, and in . . . as well a loss was [plaintiffj into parties two all defendant its are benefits as to all and types the set forth container's that in exchange goods, up to for plaintiff's two twenty $68,000 July number six, in which compelling of percent "all investment, gross, is to be shared ¹(...continued) 18, 2019, full it." about making of ownership container one account business." either responsibilities, of delivery a special overall [defendant's] and the court plaintiff granted to accept a cross motion defendant's complaint. 2 2 of 20 by defendant, late-filed answer under motion to plaintiff's sequence amended . [*FILED: 3] KINGS COUNTY CLERK 10/29/2019 12:59 PM INDEX NO. 515144/2017 NYSCEF DOC. NO. 122 half and other them," half would each sold Agreement provided in stated and also the to be receive that the that goods future any amount 11% to up would of the "[w]ithin above (which would "be new repaid for another within additional sought again, container into the gave (the for into his these Plaintiff pursuant to 24, his funds On business. agreement, two months." The to according with months up to from plaintiff 26, January plaintiff whereby $12,000 Third because he was Plaintiff further that the in the agreements, with that in to be the repaid the Thus, $103,000. agreements preoccupied asserts more was three of defendant Agreement). business asserts each plaintiffand 2015, defendant profits defendant entered materials) First regime the six to percent of the him plaintiff 2015, provided help and defendant profits with (tlie Second . On February of In amount. packaging 4 done alone. principal the approximately agreements defendant were Agreement). plaintiff to belong profits container in the collected defendant, entered $23,000 to this above agreement." this another defendant profits proceeds stated Thereafter, purchase was party Agreement be and by words, First The RECEIVED NYSCEF: 10/29/2019 total entered with that Spring of but plaintiff 2015, a personal summer him told two amount Defendant and into does gave defendant that he matter involving 2015, defendant of a third months of agreement, with given money not dispute him these up that told six by plaintiff he the have one to percent to plaintiff and funds. confirmed would whereby of him to his amounts wait family that he to owed be paid members. would have 3 . 3 of 20 . [*FILED: 4] KINGS COUNTY CLERK 10/29/2019 12:59 PM INDEX NO. 515144/2017 NYSCEF DOC. NO. 122 an answer with and 2015, RECEIVED NYSCEF: 10/29/2019 respect stated finally defendant met a January 8, 20I6 with Plaintiff he was York. until it [i.e., the that to after the United in plaintiff, but to on amount all of plaintiff $118,480 defendant was states to wait until issued by the 14, July that when results of that needed the USC confirmed Matyas, . 4 of 20 of 2016, for § that he 727. New have plaintiff 2016 was as March of the 10, get [will] of his petition. bankruptcy well asset would you notify his no the of date for deadline defendant 20I6, Plaintiff asserts that time. provide summer Rozza On more plaintiffto defendant In wife, he 11 to not 8, as § 341, District resolved, in defendant, 7 voluntary him March with Eastern did discharge. pursuant the as it's a creditor USC 11 a bankruptcy and his to for soon time, texted a chapter Defendant the and informed "as as at him asked correct. that plaintiff pursuant stated defendant promised list filed Court 4 . need to changed Plaintiff talked had Bankruptcy to to agreements, defendant 2016, bankruptcy again 2, 2016, three checks, then 5, 2015. regularly profits] not did object in thereafter, On May he he would back." plus unbeknownst that, thathe January 8, 20I6, and discharge defendant, fact States creditors a that stated in meeting received which 2015, December until the creditors' defendant's 13, July then despite investment states defendant's owed needed 8, 20I5, proceeding Plaintiff by on December March monies bankruptcy he defendant that claims According wait that him, petition to him paying meeting. unaware bankruptcy to his that after a total of calculations the sum calculation plaintiff's much delay, amount of defendant $118,480, total of the sent which [*FILED: 5] KINGS COUNTY CLERK 10/29/2019 12:59 PM INDEX NO. 515144/2017 NYSCEF DOC. NO. 122 were for dated plaintiff. pay the there checks, In closing. funds payments, issued on with ,June On 25, August of a fourth a sixth fraud, cause seventh cause of action a ninth cause of action violation Debtor for a violation of and sets a second contract, enrichment, action 2017, as amended, complaint, for Debtor Creditor for for of and to in when cash that and on full, , June 22, in tried the wife issued own his to cash these account one to or more checks remaining since . he was Brooklyn, his funds plaintiff them. in that to cash attempt plaintiff reason sufficient plaintiff house the promised defendant 2017 to $35,000 in Toms plaintiff pay provided only for a home purchasing at the $44,000 another and in check $9,000. plaintiff forth filed of of action breach § 276. action for of Law fraudulent breach of Law and of a twelfth 5 5 of 20 a third faith cause of Law interposed an cause an of action for cause of action for of cause fair and action for cause action answer, of for and of action a dealing, conversion, a tenth § 273, eleventh Plaintiff's cause a fifth good Creditor § 274, has a first inducement, duty and defendant. of stated, an eighth Debtor Creditor Defendant the duty, fiduciary against consisting an account for § 275, action action, for of and instant of action a violation Creditor the 12 causes cause Debtor Law have not did issued that 1, 2016, account paying cause of not advised check one 2017 4, the his of instead However, did plaintiff in selling claims October defendant and Jersey, he or about and 2017, February Defendant because on insufficient partial for was him, bounced, they New River, unjust of 1, 2016. However, were breach October instead checks, of RECEIVED NYSCEF: 10/29/2019 cause action a violation discovery of for a of has [*FILED: 6] KINGS COUNTY CLERK 10/29/2019 12:59 PM INDEX NO. 515144/2017 NYSCEF DOC. NO. 122 been RECEIVED NYSCEF: 10/29/2019 completed, defendant plaintiff 2019, 20, February the including their filed of taking filed instant his the of depositions note of plaintiff On issue. April and defendant. On plaintiff and 2019, 19, motions. Discussion Plaintiff, in three agreements with investments. Both plaintiff into his the plaintiffunder the $44,000 was and plaintiff the for First the Defendant, of that Agreement, and owed under agreements. Defendant plaintiff under 2The Agreement under argues the First principal equals the Third has Agreement amount Agreement and of he of The the Third plus principal $23,000 has which paid the is his discharge in percent of $12,000 an excess plus of Agreement. 6 6 of 20 the $6,900 in paying of plus this together, $12,000, Second any six the owed $44,000 the tr at 67).2 and of the amount the amount owed to It is undisputed $1,380 equals interest over that excess dispute. sums Agreement bankruptcy. interest the in deposition $6,900 from Added and (defendant's under are deposition, owed defendant's by only on returns defendant satisfied he seeks at his absolved six that he entered the Agreement that be amount $12,720. First that plus monies were the Agreement admitted investments the that under $37,100 to his testified, Third has Agreement $44,000, $23,000 him affirmation, only due equals Third owed should Agreement at his deposition, that testified, math." the defendant However, Second the plaintiff paid that $24,380. the defendant a total Third owed supporting and defendant agree monies Likewise, owed he defendant the Agreement however, that and in his asserts, Second and and that asserts motion, him only Agreement. those his Agreement Second payment, Specifically, under support under percent the interest $37,100. is $44,000, amount that Second of $720 Defendant and owed stated under "do the [*FILED: 7] KINGS COUNTY CLERK 10/29/2019 12:59 PM INDEX NO. 515144/2017 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 10/29/2019 defendant's debt Defendant also while was deny filing nevertheless his pursuing 11 (b) . . . this relief not does surreptitiously Defendant § 727 to plaintiff claim USC § 727 section under in pertinent that as an neither title, with whom or Thus, debtor bankruptcy from in all his petition. bankruptcy he would discharge plaintiff, pay bankruptcy. in prevents plaintiff from case. 7 bankruptcy section 523 that arose debts his that bankruptcy chapter in entitled § 523, under section individual of liquidations. this the date of the discharge," to USC I1 a discharge title, before "Exceptions listed the nor if such debt is not generally, in of subsection, had timely notice filing any debt where court and thereby the to time a kind timely under order for provides, prevented has his filing does not . . . section 52 1 (1) of of the creditor in paragraph (2), debtor, of a proof knowledge omitted or title this to to permit- 11 USC under debtor the this debt any specified or actual ." . . . a discharge . . . of under known is owed, of this from scheduled if name, creditor 727 debtor debt such . USC 11 promises bankruptcy in from such (6) for asset on obtaining discharge discharges discharge "(3) such a no debtor ." . . . and his disclosed to make as provided the discharge "(A) that not follows: A "(a) bankruptcy "[e]xcept chapter part, for governs discharges this he continued it was (b) and that claims because provides unscheduled her 7 7 of 20 of § 727 it of does from creditor unless claim, the case not (4), in time discharge the schedule from filing an individual submitted a timely to claim the (11 [*FILED: 8] KINGS COUNTY CLERK 10/29/2019 12:59 PM INDEX NO. 515144/2017 NYSCEF DOC. NO. 122 USC RECEIVED NYSCEF: 10/29/2019 § 523 [a] [A]). [3] that there notice of that there is Rules of of enunciated by to file Thus, (2), scheduled the debtor to has v Van to list pursuant to 2002 (e) obviates the rule 2002 (e) tolls the a proof "all and (4), in omission from (id. at 606, quoting other of for 11 the [the] bankruptcy because anything for than intentional USC § 523 debtor to (a)] receive 8 8 of 20 even the tort are the dividend, permanently extends he ruling [or of 523." she] had been [i.e., the F3d and 110, debts dischargeable presumptively of a bankruptcy 7 affect Bankruptcy reasoning '"[a]n that schedules 78 not The § was chapter does Rules NY Ct, [Sup asset a no if time, Manhattan 609 601, in the Upper schedule v Wolfé, benefit 3d that bankrupt's debts until In Federal this if Judd that (e) USC 11 of County, by (6)" order York harmed debts ruled application if (8 Misc County, § 727, and assets. Inc. 11 USC to which claims on a statement 2002 rule [a debt] received claim'" of filing the paid, payment ofa claims." of Enters., York schedules be claims; distributable have not been not New can file the their file some New debt Court, for Brackle Court, "failure to the the include may Procedure Bankruptcy Corp. Supreme creditors for from a dividend which given [the] would has scheduled, be the the who creditor not Procedure Bankruptcy it appears available be creditors Supreme petition, rule paragraph Dev. the 2005]), Procedure 1996]). of unnecessary for that discovery discharge notice period is become assets Federal bar from of it that notice Zone bankruptcy meeting will Empowerment County the further claims statutory no if case, assets are effect; sufficient Thus, 7 liquidation a chapter "In the Rules as follows: provides any, Federal However, omitted originally the 115 lack [3d "specified and discharge" of Cir in need [*FILED: 9] KINGS COUNTY CLERK 10/29/2019 12:59 PM INDEX NO. 515144/2017 NYSCEF DOC. NO. 122 Manhattan Upper and RECEIVED NYSCEF: 10/29/2019 Empowerment courts bankruptcy BR 254 Cruz, that he did not affect his bankruptcy. list Rules (see In-re NY 2000]; 443, 448 [ED NY his debt in and have In re on his this this BR 290 5, in his no claim NY that, against dismissal NY [SD 8 [ED asset district courts interpretation 31 27, contends schedule present Federal same BR 238 Herzig, mandates at 608). adopted Defendant plaintiff's that 3d ofthe 2003]; In re 1998]; In re the therefore, case bankruptcy him was ofplaintiff's fact does discharged amended in complaint action. this contends however, entitled that Circuit 1995]). plaintiff argues it constitutes because bankruptcy to 8 Misc Corp., Deutsch-Sokol, [SD discharge, Plaintiff, § 523, Second Defendant him against BR not the 806 801, 177 Thompson, Dev. within and Code Bankruptcy Zone "Exceptions A "(a) under of refinancing "(A) false than a statement property, the a false pretenses, . . . of 727 from an the § 523 this (a) not discharged and (2) in 11 USC (4). does not or renewal, by- obtained debtor's title extension, or actual representation, respecting was debt- any or extent USC 11 him as follows: services, to credit, in provides debtor to debt specified section individual money, defendant's Discharge," to an for "(2) a debt discharge discharge that or an fraud, insider's other financial condition; for Ñ4) fraud or defalcation or embezzlement, A USC debt § 523 which [a] [2], falls [4]). within New while ." . . larceny the York above acting categories State courts 9 9 of 20 in a fiduciary are have not "the capacity, discharged in power, subject bankruptcy to statutory (11 [*FILED: 10] KINGS COUNTY CLERK 10/29/2019 12:59 PM INDEX NO. 515144/2017 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 10/29/2019 exception, to determine 657 41 NY2d 655, [2d Dept 2014]). interpret "New 3d There generally under 11 USC in manner" (1 Bank, creditor USC or to have § 523 determine Gleeson Manhattan in 442 otherwise notify [ED the a dischargeability [a] whether v Phelan, or 2016 Empowerment not Bankr exception time to Cal defendant's NY Zone Slip Dev. Manual to plaintiff 30993[U], Corp., [5th 8 Misc 10 10 of 20 *4 3d by where fails the Ct, at 608). to NY fact, 2016]). Comm BR 556 creditor v JP or she at was discharge he in a Morgan a known forfeits court the dischargeable County Dev. dischargeable schedule Therefore, to bankruptcy to bankruptcy in NY the Johnson e.g., ed]). was, [Sup Zone Palumbo, filing, bankruptcy § 2:5 re 909 a debtor's Advisory exception a debtor solely of is also cases ; see ed.] where made debt Op for or her his determination Law an [5th In 4007; action courts in that a debt ; see [1] in Thus, of rule federal [WD courts whether exception § 2:5 2008]). state [c] 909, effect 55 1-552 546, § 523 commence the Wilkes, AD3d Empowerment of Pro to th[is] Manual creditor BR determine USC (11 (6) determine jurisdiction to with Manhattan 556 Palumbo, Rules 1 Bankruptcy [3]; (Upper concurrent or to Yorkv 114 Assn., jurisdiction authority ...." re Law Bankruptcy the ofNew (State Realty concurrent have jurisdiction (4) is an BR 395 In the v 107-18 "have Federal schedules timely Chase (2), (a) "[t]here the also to following However, listed see courts parties exclusive § 523 Kavanagh and third discharge" a [bankruptcy] also state exception have reprinted Notes, on at 608; is an courts right York of Bankruptcy 8 Misc Corp., not ; see [1977] in bankruptcy discharge effect Code," the 551). the 2016] the (see court I 1 may (see ; Upper [*FILED: 11] KINGS COUNTY CLERK 10/29/2019 12:59 PM INDEX NO. 515144/2017 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 10/29/2019 plaintif Here, Plaintiff duty. which breached to his A $ 523 business, a of or with property to him, the and a debtor that pursuant duty further funds asserts the fiduciary to the First defendant partnership when him misleading of that to belonging constantly in acted 87 [SD New v Salmon (249 NY been have In 1318 re [2d the it carne a fiduciary under capaci> 11 USC Stone, Cir 90 whether statute" nom. to and a trust res charged be in an (In re ordinary, duties are v Zoldan, Zohlman in their s created BR 221 Zoldan, is duties arm' fiduciary such be corn~on and acting BR 71, are duties, to the [1928]) to or (2) to party inherent sub fiduciary pursuant held agd the characteristically obligations law wrongdoing, which (3) prior existing 79, BR 226 1998]). such 458 and trust of act to relationship, 1998], NY York, as partners, others common NY [SD of particular commercial contract, capacities F2d lying respect above by 767 880 commingling relationship any to and length id.; fiduciary Plaintiff by court continuing irrespective over (see the by accountable (4) a breach back. "(1) partners him for requires: (4) In a claim alleges action, a~«arcr«. him to of owed defendant duty determination (a) cause a partnership overall him paying was fiduciary defendant's seventh that asserts Agreement, with in his law numerous under other in a fiduciary 79-80 [SD upon imposed New capacity NY1988], 1989]). 11 11 of 20 the seminal York for partners decision cases purposes apped 94 BR acting 11 [SD Meinhard it. following of 298 of USC NY1988], Thus, f 523 (a) affd [*FILED: 12] KINGS COUNTY CLERK 10/29/2019 12:59 PM INDEX NO. 515144/2017 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 10/29/2019 The First and defendant, container. Agreement that the Plaintiff 3 partner plaintiff the was either court fraud, For (4). purposes BR if 452 445, in the conduct his debtor that Here, plaintiff's overall or "conduct the NY her care had either at his "a but to their plaintiff entry of admitted that and the defendant, the First so he was monies who not the re his claimed by to be the funds in high also him First funds "got school, deposition his had re 11 Watterson, USC over § 523 BR 524 at 452). Agreement, to of into [plaintiffj been tr at in keep his Defendant the friends 10). (a) wrongful the to, up (a) an or turn business. tied § 523 conduct for account of to requires In regarst into amounted 11 USC Watterson, the up gave (defendant's 12 of 20 to with In mix these met ; see meaning under to up had as "reckless" or a Educiary (see plaintiff Agreement him defalcation Code, reckless required, mixed the invested duty of meañing [2013] of duty as is fiduciary improper" is within or was the 273-274 failure of, he account into the of funds which of Bankruptcy 267, fiduciary that that the defalcation special deposition, within knows US knowledge knew of the and goods to duty to liability breach larceny (4) Thus, constitutes the of the fiduciary respect plaintiff 87). at fiduciary 569 2015]). defendant business," prior [ED in (a) for between ownership his with defendant's or N.A., a breach 3Notably, years § 523 constitutes funds testified, whether USC 11 v BankChampaign, property (4) of breached basis BR 221 in the capacity the embezzlement, wrong," (Bullock is Zoldan, determines defalcation, "intentional 524 next re has a fiduciary which a partnership was partners" "full defendant in acting In (see were that there that them partnership, nondischargeable The of two alleges Defendant in provided business" for rnany [*FILED: 13] KINGS COUNTY CLERK 10/29/2019 12:59 PM INDEX NO. 515144/2017 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 10/29/2019 (defendant's provided the monies in there at 88). Defendant or that separate not with account Agreement funds mixed to in this to contrary funds business other did the First that and deal, plaintiff by plaintiff's specifically with up loaned that respect First the be monies the admitted Defendant the from would conceded at 88-89). that exclusively defendant loaned (id. agreed back paid be Defendant special no 87). would business was at plaintiff that (id. the tr plaintiff that expenses up deposition get mixed Agrcement, (id. at 89). . Defendant pay plaintiff back his also Defendant plaintiff as reassured assets pursuant to defalcation that First the while defendant's 90 at with the receive the owed 10, 2016 these while be paid 11 discharge but failed kept (a) bankruptcy (4) the to In that (id. at 28). 21). demands without listing debt was re Zoldan, 13 . not 221 and was defendant 80). 13 of 20 at him plaintiff it (id. misappropriated which thus, First the plaintiff's defendant's (see under bankruptcy finds and, pay to required container partner, to was that stalling for court Therefore, § 523 in and the capacity. of as plaintiff's plaintiff to USC and and testified sale filing Consequently, to the monies, acting belonged as a partner, Defendant from he would in a fiduciary acting profits. profits plaintiff Defendant, rightfully funds, surreptitiously Agreement. March BR along plaintiffthat pursuant nondischargeable plaintiff's he simultaneously a creditor. diverted to he that while payments Stone, was admitted Defendant took that $68,000, plaintiff Agreement, for knew also entitled committed to plaintiff was discharged BR at 87; by In re [*FILED: 14] KINGS COUNTY CLERK 10/29/2019 12:59 PM INDEX NO. 515144/2017 NYSCEF NO. 122 . .DOC. RECEIVED NYSCEF: 10/29/2019 Defendant of duplicative bankruptcy. constitute may out arising itself'" _ Devon of NY 132 AD2d Mgt. L.L.C., Dept Servs., 2001]). of as his Centerline/Fleet Hous. Defendant he Defendant a 30% Defendant, is only denies required at his testified, markup, and however, that breach of pay of contract action made he admitted [1st on of the that received he action, distinct under amount above would usually he less than did, in this fact, 14 14 of 20 factual the (defendant's sell all of First Op the bags in of the same the allegations 07171, *2). and he deposition the [4th 136 and in the bags Seneca v Agreement, Agreement, if v v Restaurant out $68,000 sell LLC, NYS2d 731 Slip First contract Fabrics, Barte theories NY the Corp. La the a duty Mandelblatt arises i.e., 2019 B, profits any action of St. denied the v Waverly 2017]; rearg cause cause 50th E. of Apartments, quoting Meyers Dept 2001], is based plaintiff that ; 37 L.P.-Series deposition, he Dept duty Partnership, that to [4th also in which breach of Ct. 2019], 4, see 1987]; 571 569, fiduciary cause duty fiduciary 976 974, plaintiff's While transaction underlying breach AD2d 285 Corp., Oct. n 2 [1985] 80 75, AD3d 156 Dept Dept [1st NY2d 65 Co., [4th the v Hopkins merely conduct is independent B is discharged same 'the constitute which but L.P.-Series *2 07171, 167-168 162, & contract by was asserts, that also may claim fiduciary he established obligation Partnership, Op Slip is well of which, claim, "It a contractual Hous. breach plaintiff's contract created Schumacher Resources that of relationship _, 2019 Stores, Group. (see breach the of is rejected. (Centerline/Fleet AD3d Div. argument the of breach plaintiff's This that however, argues, the contends a profit. made container tr at container, for 27-29). and [*FILED: 15] KINGS COUNTY CLERK 10/29/2019 12:59 PM INDEX NO. 515144/2017 NYSCEF DOC. NO. 122 that RECEIVED NYSCEF: 10/29/2019 actual the business," that business" the 2019 19, from "there were previous the checks an attempt of he.gave [2d Dept While upon plaintiff's March 10, Pursuant a debt Thus, so obligation long to new that breach of fiduciary General memorandum be as the statute has consideration in fact the to the (5), barred by the debtor's subscribed further through by bankruptcy, promise. 15 15 of 20 was nondischargeable the of party by frauds to if be a debtor, is binding debt "it profit and owed, be merely AD3d 760, based subsequent new or little $68,000. of his subsequent statute 170 that April his actual to 11% notes in up very amount appears reaffirmed a promise satisfied, full the testimony, full the "a any v Darwish, plaintiff court in deposition affidavit Rabiea to (a) is is his tied was "never the into "got money "there prior him pay got money statement, was his recover § 5-701 and frauds to defendant order, is not writing, with generally debt claim, discharged for (see the that there that going is entitled Law of been was that motion, statement discharge bankruptcy" thereof he defendant's Obligations in pay of finds instant and "the Defendant's is inconsistent plaintiff Thus, and 87). 28, goods," that issue stuff," his Defendant's bankruptcy discharged these court 2016 to of of because was other at 24, goods," a feigned the tr support plaintiff. 2019]). and pay plaintiff plaintiff pay in sale to to raise to container's the not deposition the assurances to did bills submitted from sale his he (defendant's affidavit the some that received money 761 reason to to plaintiff. promise or charged even without the some to pay note or therewith." after there a legal being [*FILED: 16] KINGS COUNTY CLERK 10/29/2019 12:59 PM INDEX NO. 515144/2017 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 10/29/2019 After March the 2016, which contains owed plaintiff the for the that he First both under the at his $23,000 101-102). dated checks, these $44,000 plaintiff. of he and was that did not how the the Second 11% First share have of Plaintiff, the owed he profit under a total the plaintiff plaintiff the the funds plaintiff under the plaintiff, that to time pay to in June he only him that interest owed plaintiff give calculated a $2,760 in his with amount stated at the $118,480, payment motion, however, First Agreement plus 16 of 20 back a $12,000 instant 16 the was $12,000 plus the WhatsApp statutory of at tr wife, stated that which he further his the he was paid debt amount that to owed owed him, 120). return was owed on owed the on the $23,000 he is seeking interest. at plaintiff his acknowledging (id. in admitted, gave Defendant amount $720 deposition also full the chat, also by him. defendant to Defendant that plaintiff and $44,000 states he under expressly paid that $12,000 written 2017, stated asked (defendant's by 2, plus discharge, of checks by deposition, or why chat the sum. time May stated in bankruptcy amount of owed at that 2016 WhatsApp in payment had $118,480 dated then Agreement, Defendant, this 10, chat, as $68,000 Second $118,480 March in the and agreements, WhatsApp him chat, defendant names, the $118,480.4 of he owed sufficient as to why Agreement Agreement. defendant amount at his much 4It is unclear his checks Defendant, because that 2016, in defendant, plaintiff plaintiff 1, under $12,000 in the owed after October and bounced, giving he Defendant, and a WhatsApp printed Plaintiff, for that that defendant's $2,760 in discharge, him. plus Agreement, deposition, under by acknowledged response, and amount the Third plaintiff $23,000, owed calculated Agreement, bankruptcy $68,000, amounts total 2016 10, $68,000 under the $7,480 as [*FILED: 17] KINGS COUNTY CLERK 10/29/2019 12:59 PM INDEX NO. 515144/2017 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 10/29/2019 Defendant argues he did not subscribe which the sending of statute the [2d 201 Dept Dept l] ; see 930 and name, acted upon there but chat. were which and m actions checks explainable" only the WhatsApp NY3d 945 chat [2014] payments in defendant, at his were at with these reference (Alayoff [internal time checks to v Alayoff quotation checks, alone would not agreed that "be defendant's 112 marks 564, omitted]). 17 17 of 20 AD3d 938, 939 Dept he this 566 [2d was a WhatsApp printed electronically stated that to defendant owed he was the statute the First contains his plaintiff tr or to lv dismissed 2008], Moreover, unintelligible agreement AD3d 84 deposition (defendant's would Group, satisfy which 2016], 477 referable chat Dept 476, since as he purposes [the] [2d under AD3d statements. the WhatsApp for defendant's these a party, by 695 because 80 [1st name frauds LLC, Realty 255-256 his of sent 694, v Viraj contained deposition, statute writing AD3d unequivocally the that e-mail St. type made payments debt made he "'[a[n Corp. not plaintiff giving partial his plaintiff givmg by partial only reaffirmed name, the not that deny 17 253, chat WhatsÁpp not While did the 136 E. Mach. satisfy a [signed] Corp., 50 AD3d S.A., that constitute v 2615 defendant the held Sys. Global v Publicis does can Ink Trueforge statements these Estate cannot been v Fast Although defendant defendant printed also to an email, WhatsApp here, Real Co. [2008]). as opp-osed chat, is typed, ( Agosta ; Stevens 2011] 10 NY3d the & It has name frauds'" chat WhatsApp statements. party's Newmark quoting [1st his of the that repay Dept at at least of frauds, Agreement, electronically the 102). in doing monies for Defendant's extraordinary, forth plaintiff, as set 2013], lv dismissed in 24 [*FILED: 18] KINGS COUNTY CLERK 10/29/2019 12:59 PM INDEX NO. 515144/2017 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 10/29/2019 "The sufficient '[was] statute of contract & Cohon finds that liable March amount of $6,900 Agreement, 5The total $720 niust constituting from $112,580, share 2004], 2001] ; see was the $75,480. [a] owed This remains to the also Contr., v Desco v Dobi, Matisoff 2002]). Dept as a bar [it] 11 AD3d at 503, under his breach of could defendant debt a court the of a theory to quoting while reaffirming 90 "Indeed, interpose in bankruptcy, defendant's Frauds'" Dzek Consequently, plaintiff agreement of Statute quoting [2d to [1969]). plaintiff must principal sum now of defendant owed from profits, Gen. discharged upon 484 483, defendant[] 574 Since subtracted $68,580 AD2d owed amount 6% interest. 298 oral ofthe terms also plaintiff to discharge. to plaintiff were Dept [3d not defendant of [2d 927 569, bankruptcy which 11% Dept 503 enable based $37,100 be of amounts debt totals the amount constituting subtracted owes above scope ( Concordia the contract by which $7,480, is $6,900 $7,480 owed defendant Agreement, for 2016 10, the NY2d 23 the of outside 502, 'to made'" which essential 926, enacted liable breach amount The which is for the following not v Russell, under duty, be held Co. and v Cucinella, admittedly, defendant fiduciary AD2d Bono was and fairly, Morris plus frauds existence 11 AD3d 285 [1997]; the agreement v Peltz, Contr. 134 127, of the ofSchenectady, NY2d the take to Gen. (Concordia Vitroglaze admission defendant's under under the $23,000 to plaintiff. 18 . 18 of 20 Agreement First in interest were: constituting sum and the $68,000 Third plus 6% interest, of $44,000 the $44,000, $68,580.5 equals the the plaintiff paid already Second When 11% plus agreements $1,380 $112,580. owed the three plus equals has Under calculated. $68,000, which $75,480, be $12,000 is [*FILED: 19] KINGS COUNTY CLERK 10/29/2019 12:59 PM INDEX NO. 515144/2017 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 10/29/2019 Plaintiff also an seeks "Interest shall breach of equitable is well "It whole" of Plaintiffis (see AD2d at 274; the CPLR 24, 2014, the order(see owed plus owed date general prevailing the the of awarding interest cause to him payment 5001 of defendant due was 5004). This interest equals be the rate First $30,861 of $30,861 equals his motion, for it Here, plaintiff of [2d Agreement the of date years). the earliest interest from October this decision of the Thus, due 297 2000]). annuin the $99,441 sum prejudgment per x five Dept both money. Cohen, from. to his principal 2009]; [1st party was on upon 372 until aggrieved return Dept percent a total of computed ($6,172.20 of or an is entitled nine to, make (a) 371, or which rate 5001 AD2d a act an action from 661 Plaintiff at the under a fair shall "[i]nterest in 2002}). 660, 268 existed." action by AD3d title provides: (a) of an is to to CPLR v Drizin, (b), Dept realize pursuant 62 Corp. interest [2d to that and date discretion." court's 274 272, opportunity Holding prejudgment and $68,580 from owing plaintiff. Plaintiff the the CPLR to AD2d rate in [a] ; HuangvSy, CPLR to date and defendant 5001 be purpose 297 and Eighteen $68,580 the toprejudgment Pursuant ascertainable that the and of with except 5001 because because interfering property, interest awarded or a contract, of, shall a sum otherwise enjoyment computed money entitled awarded on be v Gordon, his or CPLR interest. upon of nature, settled ( Cohen deprived or prejudgment recovered depriving possession shall be performance omission an of award also rule, party requests, attorneys' may not in fees collect and them an award disbursements from the 19 19 of 20 of are loser attorney's incidents unless an fees of award to him. litigation is "Under and authorized the by [*FILED: 20] KINGS COUNTY CLERK 10/29/2019 12:59 PM INDEX NO. 515144/2017 w NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 10/29/2019 agreement between v Lezak, Corp. the since the NY2d 69 First parties or by 1, 5 [1986]). Agreement not does or statute rule" court (Matter plaintiff's Thus, provide for an of A.G. request award of for Ship is denied fees attorney's attorney's Maintenance fees. Conclusion sequence number directed to prejudgment sequence pay This four, is plaintiff interest number motion plaintiff's Accordingly, of five, constitutes the total $30,861. dismissing the to granted decision, for the sum summary extent of motion order, complaint and for against of J. N 20 20 of 20 T and $68,580 judgment, him the is denied. court. E S. C. WAYNE R J.S 11.:1 of under favor, awarded is summary E 03 his consisting judgment HON. in plaintiff $99,441, Defendant's plaintiff's that judgment . R, SAITTA ,motion defendant owed under is plus motion
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