Hersko v Hersko

Annotate this Case

Download PDF

Hersko v Hersko 2023 NY Slip Op 33934(U) October 31, 2023 Supreme Court, Kings County Docket Number: Index No. 519449/2021 Judge: Leon Ruchelsman 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. INDEX NO. 519449/2021 FILED: KINGS COUNTY CLERK 11/02/2023 11:15 AM NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 11/02/2023 SUPREME COURT OF THE STATE OF NEW COUNTY OF KINGS : CIVIL TERM: CCl? YORK -·--- .. ------·-,-.--.---. - . ----------. - .. - . - .. --x .BARRY HERSKOf Decision and order Plaintiffs, - ~gainst Index No. 519449/2021 ~ MORRIS HERSKO & SARA G. HERSKO, October 31, 2023 Defendants, ·--- ... - .·-----. ·------------·--. ------- ·-· --.--·x PRESENT: HON. .LEON RUCHELSMAN Motion Seq. # 6 The plaintiff has moved seeking to extend the discovery deadline in this action. The defendants have opposed the motion. Papers were submitted by the parties and arguments held. After reviewing all the arguments this court now makes the following determination, The plaintiff alleges he loaned the .defendant and his wife significant sums of money. Specifically, the complaint alleges the defendant Morris who is the plaintiff's nephew borrowed $190,000, ~169j834.35 4 $90,163.55 and $250,000 between 2011 and 2014. The loans were all oral and were allegedly due during 2017. The loans were not repaid and this lawsuit was commenced. On June 1, 2023 thE! plaintiff served defendants with a discovery demand. 20, 2023 The defendant,:i responded to the demand on Juhe which response included objections. On June 28, 2023 the plaintiff responded with a deficiency letter and sought another production and a meet and confer. The defendants never :furnished another production and a meet arid confer never took [* 1] 1 of 5 INDEX NO. 519449/2021 FILED: KINGS COUNTY CLERK 11/02/2023 11:15 AM NYSCEF DOC. NO. 111 place. RECEIVED NYSCEF: 11/02/2023 Further, on June 14, 2023 the defendants served a demand upon the plaintiff and on July 5, 2023 the plaintiff responded that he would respond to the demands at a future date and ultimately responded on August 18, 2023. On July lB, 2023 the court issued an order requiring all depositions by September 1, 2023 and that by AU:gust 7 the parties were required to schedule depositions. The plaintiff sought to schedule plaintiff's deposition on August 23 subject to the completion of all discovery. The plaintiff asserts that on AU:gust 23, 2023 the defendants informed the plaintiff that no further discovery would be furnished prompting the plaintiff to serve a subpoena upon TD Bank and to seek an extension of time in which to conduct depositions. been filed. This motion seeking the extension of time has now The plaintiff asserts that the bank statements are vital and depositions cannot be conducted without them. The defendants counter the bank statements are irrelevant and the motion seeking an extension should be denied. Conclusions of Law It is well settled that where a party alleges a loan has been extended and has not be.en repaid that pa:rty bea.rs the burden of demonstrating such loan exists even if the other party ass.erts the money given was inte.nded .as a gift (Peters v. Papoulacos, 218 2 [* 2] 2 of 5 FILED: KINGS COUNTY CLERK 11/02/2023 11:15 AM NYSCEF DOC. NO. 111 INDEX NO. 519449/2021 RECEIVED NYSCEF: 11/02/2023 Ca1.App2d 791, 32 Cal.Rptr. 689 [District Court of Appeal, Second District, Division 3, California 1963]). Thus, in further support of the plaintiff's burden, the plaintiff seeks the: defendant's bank records from TD Bank. There is no dispute that on November 28, 2011 the plaintiff provided the defendants with $190,000 and that on March 5, 2012 provided another $169,834.45 and that on March 12, 2012 provided another $90,163.55 and that in March 2014 provided another $250,000. There is further no dispute all the transfers made by the plaintiff to the defendants were oral and there is no written agreement. The plaintiff seeks the defendants bank records to substantiate the allegation the funds provided were used to allow the defendants to pay off mortgage debt. Specifically, the plaintiff seeks to utilize the: bank statements to match funds submitted with mortgiige payments made which will corroborate the fact the money was intended to be given as loans. However, even if that is true and the funds were used to pay off mortgaqe5-, a contention that might not even be gisputed, that does not in any way support the plaintiff's theory that loans were intended. The case of Smith-Knabb v. Vesper, 206 NEJd 1265, 2023-Ohio-259 [Court of Appeals of Ohio; 'l'welfth District, Warren County 2023] is instructive. In that case the court affirmed the trial court's concltlSioh that a bridge loan was really a gift. In that case the donor signed a gift letter 3 [* 3] 3 of 5 INDEX NO. 519449/2021 FILED: KINGS COUNTY CLERK 11/02/2023 11:15 AM NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 11/02/2023 essentially conceding the mqney fqrwarded was a gift. The money forwarded in that case was used as a bridge loan and no bank statements were ever produced to corroborate the nature of the gift or loan. The reason is clear, The existence Of anybartk statements would .fail to advance any of the plaintiff's assertions at all. Incieed, any discciverythat seeks irrelevant information is not proper (see, New York Central Mutual Fire Insurance Company v. Librizzi, 106 AD3d 921, 965 NYS2d 183 [2d Dept., 2013]) . Thes resolution of this case will rest upon the strength of any presumptions r-egarding money forwarded to relatives {see, generally, Unexplained gratuitous transfer of property from one relative to another as raising presumption of gift [91 ALR3d (1979)], the intent of the transferor ( ~ , generally, § 6 Distinction between gifts inter vivas and other transac:tions and the credibility of the witnesses who will testify at trial [Corpus Juris secundum (2023)} and the credibility 0£ the witnesses at trial ( ~ ) Capozzi v Luciano, 170 [.Supreme Court of Connecticut 1978]). 384 A2d 359; 174 conn Ahy barik statements that demonstrate funds admittedly received do riot in ahy way suppo.rt the contention the funds were intended as loans and ncit gifts~ Therefore, base.ct on the foregoing,; the plaintiff's motion seeking ari extension i$ denied. The. deposi tioris may not be 4 [* 4] 4 of 5 INDEX NO. 519449/2021 FILED: KINGS COUNTY CLERK 11/02/2023 11:15 AM NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 11/02/2023 postponed based upon a request for any' bank records. Lastly, all motions seeking sanctions are denied. So orciered. ENTER: DATED: October 31,. 2023 Brooklyn N.Y. Hon. Leon Ruchelsr\3/1 JSC 5 [* 5] 5 of 5

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.