Cox v Siu
Annotate this CaseDecided on October 15, 2019
Civil Court of the City of New York, New York County
Stephen W Cox, Plaintiff,
against
Dr. Paul J. Siu, DDS and PAUL J. SIU GROUP, LLC, Defendants.
CV - 13565-17/NY
STEPHEN COX
Plaintiff Pro Se
SANFORD L. PIROTIN, P.C.
Attorney for Defendant
323 Madison Street
Westbury, New York 11590
516.333.2553
Sabrina B. Kraus, J.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff commenced this action pursuant to a summons and endorsed complaint filed on June 26, 2017, seeking judgment in the amount of $24,360.00. The endorsed complaint describes the cause of action as being for "failure to pay money loaned."
Defendant failed to answer or appear and on December 4, 2017, plaintiff filed a notice of inquest, and an inquest date was set for January 3, 2018. On January 3, 2018, the action was dismissed based on plaintiff's failure to appear for inquest.
On January 18, 2018, plaintiff moved to vacate the dismissal, and defendant appeared by counsel. In support of his motion, plaintiff alleged that he had given money to defendant and that defendant agreed to pay him back and had begun to make payments on the amounts due. Defendant alleged that he had timely prepared and filed a pro se answer. The answer asserted five affirmative defenses including that the claim was barred by the statute of limitations. The court (Ramseur) granted the motion, on the return date, pursuant to a decision and order that vacated the dismissal, set a schedule for service of discovery demands and set a further pre-trial conference for May 17, 2018.
On May 3, 2018, plaintiff filed a motion seeking to compel defendant to comply with [*2]discovery. The motion was denied by the court (Ramirez, J) on the return date, pursuant to an order which provided that the motion was moot, as plaintiff acknowledged having received responses on April 30, 2018. On that same date, the court also issued a discovery order which set a schedule for further discovery and provided that the parties were required to exchange all documents intended to be used at trial by June 29, 2018. A further pretrial conference was scheduled for July 23, 2018.
On May 17, 2018, the court (Ramirez, J) inadvertently adjourned the pre-trial conference to July 12, 2018, instead of July 23, 2018, as per its prior order. On July 12, 2018, the court (Ramirez, J) dismissed the action based on the failure of the parties to appear.
On July 23, 2018, the court adjourned the pre-trial conference to September 24, 2018.
On July 27, 2018, plaintiff moved to vacate the dismissal, but the motion was denied based on the failure of either party to appear.
On September 24, 2018, the court (Walker-Diallo, J) issued a further order directing discovery, and the action was adjourned for a further pretrial conference to March 12, 2019.
On March 12, 2019, a trial date was set for July 16, 2019, with a final marking.
On May 14, 2019, plaintiff moved for an order compelling discovery, and for an order amending the caption. The motion was denied on the return date based on plaintiff's failure to appear.
On June 3, 2019, plaintiff again moved to compel discovery and amend the caption, and the court (Dominguez, J) granted the motion without opposition, pursuant to an order which directed defendant to turn over to plaintiff the address of his bookkeeper and receptionist and which amended the caption to add the LLC as a defendant.
On July 16, 2019, the court adjourned the trial on the application of defendant's counsel, to September 17, 2019, with a final marking against defendant.
On September 17, 2019, the parties went to mediation, the mediation was not successful and a further trial date was set for October 11, 2019.
On October 11, 2019, the court held a bench trial and reserved decision.
FINDINGS OF FACT
Plaintiff knew Dr. Siu from the early 1990s. Dr. Siu was plaintiff's dentist. The two also briefly played in a band together. They were friends and socialized together. In or around 2013, Dr. Siu told plaintiff he was putting together a deal to import 262 carats in rough diamonds from Sierra Leone, Africa. Dr. Siu told plaintiff he needed more money to complete the deal. Plaintiff trusted Dr. Siu.
Plaintiff wrote Dr. Siu a check for $10,000.00 dated August 15, 2013 (Ex 1A), and two more checks in the amount of $5000 each on November 15, 2013 (Ex 1B) and December 11, 2013 (Ex 1C). Additionally, in January 2014, plaintiff caused another $6500.00 to be wired to the bank account of Foday Sesay, Dr. Siu's contact in Sierra Leone for the purchase of the diamonds (Exs 2A-C).
The original understanding between the parties, which was never memorialized in any writing, was that in exchange for plaintiff's investment, he was going to receive a proportionate sale of the profits based on the amount he invested.
Up until this point, the facts are pretty much uncontested. It appears that, at some point, plaintiff began to suspect that there was no actual deal and that Dr. Siu was just scamming him [*3]for money. Plaintiff testified credibly that Dr. Siu was being audited by the IRS, that Dr. Siu and marital problems, and that Dr. Siu was gambling a lot in Las Vegas.
Plaintiff confronted Dr. Siu with his concerns and Plaintiff testified that Dr. Siu agreed to allow plaintiff to withdraw from the investment and to repay him the amount of his investment.
It was stipulated by the parties on the record at trial that Dr. Siu made $4,250.00 in payments to plaintiff as follows :
$250 on March10, 2014; and$500 on August 13, 2014; and$500 on November 26, 2014; and$500 on January 23, 2015; and$500 on February 25, 2015; and$500 on March 17, 2015; and$1000 on June 3, 2015; and$500 on August 18, 2016.[FN1]At trial, plaintiff testified that these repayments evidenced the oral agreement between the parties for Dr. Siu to repay plaintiff the amount invested. Dr. Siu testified that Plaintiff worked for a period of time in Dr. Siu's office in 2014, and that these payments "could" have been for the work done. Dr. Siu had no recollection of how long plaintiff worked in his office or how much plaintiff was paid, or even what rate plaintiff was paid at.
Dr. Siu testified there were a total of 7 investors in the deal and that Dr. Siu had invested $75,000 of his own money in the deal. Dr. Siu testified that all told he sent over $200,000 in funds to Africa for the deal, that the purchase price of the diamonds was over $600,000 and that Foday Sesay was going to put up 50% of that amount. Dr. Siu testified that plaintiff was more than just an investor, and that plaintiff was involved in organizing the business end of the deal, and consulted with Dr. Siu on strategy. Dr. Siu testified that Foday Sesay got cancer and died, that the deal never panned out and that the money that had been invested was lost and could not be recovered.
Other than some emails Dr. Siu offered no documents in evidence pertaining to the investment or plaintiff's alleged employment with his office. Dr. Siu offered no tax documents showing any loss claimed with the IRS or showing that plaintiff was ever an employee for tax purposes.
Dr. Siu testified that he does not believe he had been audited by the IRS since 2007 and that he had not been to Las Vegas since 2010.
DISCUSSION
This case turns largely on the question of credibility, and the court found plaintiff to be a much more credible witness than defendant. To the extent that their testimony conflicted, the court credits the testimony of plaintiff over defendant.
Certainly plaintiff did not prove by a preponderance of evidence that Dr. Siu was [*4]scamming him and that Dr Siu retained the money for his own purposes, however that was clearly what plaintiff came to believe.
What plaintiff did prove by a preponderance of credible evidence was that after the "investment" fell apart, Dr. Siu agreed to repay plaintiff the sum initially invested. This oral promise is not barred by the statute of frauds, as nothing in the agreement between the parties set the duration of defendant's obligation to make the repayments, which could have been repaid with one year (Nakamura v Fujii 253 AD2d 387) nor did defendants assert the statute of frauds as a defense. In addition to plaintiff's credible testimony that this agreement was made, there are the payments that were made pursuant to the oral agreement.
Dr. Siu's testimony on the issue of these payments was particularly lacking in detail and credibility. While Dr. Siu submitted emails which contradict, in some respects, an oral agreement to repay plaintiff's initial investment, the court does not give said emails great weight. The emails (Exhibit A) were admitted over plaintiff's objection. Plaintiff objected both because he stated the emails were partially fabricated and because they were not produced in discovery prior to trial. The court credit's Cox's testimony that the emails were partially fabricated and not produced in advance of trial, as required by pretrial discovery orders.
While the defendant did assert statute of limitations as a defense, the court finds that the applicable statute of limitations is six years (CPLR § 213), and the action was commenced within the allowable time period.
The court further finds that the agreement to repay the amount invested only applies to the $20,000 paid directly to Dr. Siu, and not to the $6500.00 that plaintiff wired to Foday Sesay at defendant's request.
The evidence at trial further only implicated Dr. Siu in his individual capacity and not as part of the LLC.
WHEREFORE IT IS ORDERED that the clerk enter judgment in favor of plaintiff against defendant Dr. Paul J. Siu, DDS in the amount of $15,750.00 plus costs; and
IT IS FURTHER ORDERED that the action is dismissed as against the PAUL J. SIU GROUP, LLC
This constitutes the decision and order of this court.
Dated: October 15, 2019
New York, New York
_________________________
Hon. Sabrina B. Kraus
JCC
Footnotes
Footnote 1:This schedule was handwritten on the last page of a packet of documents which was marked Exhibit 9 for identification but was only admitted to the extent of stipulating to the payments listed on the last page.
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