Gordon v. Voronova

Full title: DMITRY GORDON, Plaintiff, v. YELENA VORONOVA, Defendant.

Court: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : IAS PART 12

Date published: Aug 5, 2016

2016 N.Y. Slip Op. 31484 (N.Y. Sup. Ct. 2016)

Opinion

Index No. 151694/16

08-05-2016

DMITRY GORDON, Plaintiff, v. YELENA VORONOVA, Defendant.

For plaintiff: Yosef Y. Weintraub, Esq. Weintraub, LLC 30 Wall St., 8th fl. New York, NY 10005 646-450-6177 For defendant: Elan Layliev, Esq. Layliev Law, PC 125-10 Queens Blvd., Ste. 311 Kew Gardens, NY 11415 718-412-3434

BARBARA JAFFE, JSC

Motion seq. no. 001

DECISION AND ORDER

BARBARA JAFFE, JSC: For plaintiff:
Yosef Y. Weintraub, Esq.
Weintraub, LLC
30 Wall St., 8^th fl.
New York, NY 10005
646-450-6177 For defendant:
Elan Layliev, Esq.
Layliev Law, PC
125-10 Queens Blvd., Ste. 311
Kew Gardens, NY 11415
718-412-3434

Plaintiff moves pursuant to CPLR 3213 for an order granting him summary judgment in lieu of complaint based on a promissory note. Defendant opposes.

I. BACKGROUND

By written agreement dated July 16, 2015, defendant retained Amerimax Capital, LLC, of which plaintiff is the managing member, to obtain financing for the purchase of commercial real estate in exchange for a commission of three percent of the gross loan amount, payable at closing, with a retainer fee of $995 to be applied toward the loan processing fee. (NYSCEF 7, 11). By letter dated September 18, 2015, a financing entity procured for defendant by plaintiff, proposed terms and documentation for a $1,317,400 loan to defendant to assist her in refinancing a business debt, and purchase and improve a commercial property. (NYSCEF 19). Department of Buildings records and an October 2015 appraisal classify the property as an office building. (NYSCEF 28-29).

On December 21, 2015, the day of the closing of the purchase with the aforementioned financing, defendant executed a promissory note dated December 21, 2015, by which she promised to pay plaintiff, for value received, $32,000, with an initial contemporaneous payment of $16,000, followed by four monthly payments of $4,000. (NYSCEF 14). Defendant only paid plaintiff the initial $16,000. (NYSCEF 7).

II. DISCUSSION

"When an action is based upon an instrument for the payment of money only . . ., the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint." (CPLR 3213). "A promissory note is an instrument for the payment of money only, provided that it contains an unconditional promise by the borrower to pay the lender over a stated period of time." (Von Fricken v Schaefer, 118 AD3d 869, 870 [2d Dept 2014]; see LaBoeuf v Saide, 134 AD3d 515, 516 [1^st Dept 2015]; German Am. Cap. Corp. v Oxley Dev. Co., LLC, 102 AD3d 408, 408 [1^st Dept 2013], lv denied 21 NY3d 862).

The plaintiff establishes a prima facie case with "proof of the note and a failure to make the payments called for by its terms" (Bonds Fin., Inc. v Kestrel Tech., LLC, 48 AD3d 230, 231 [1^st Dept 2008]; Seaman-Andwall Corp. v Wright Mack Corp., 31 AD2d 136, 137 [1^st Dept 1968], affd 29 NY2d 617 [1971]), which requires "documentary evidence or an explanation of how the indebtedness is calculated, other than in the form of mere conclusory allegations" (RBS Citizens, N.A. v Dynamic Biz, Inc., 80 AD3d 868, 869 [3d Dept 2011]; HSBC Bank USA v IPO, LLC, 290 AD2d 246, 246 [1^st Dept 2002]). "[I]nvocation of defenses based on facts extrinsic to an instrument for the payment of money only do[es] not preclude CPLR 3213 consideration." (Goldberger v Magid, 133 AD3d 546, 546 [1^st Dept 2015]).

If the plaintiff satisfies his burden, the burden shifts to the defendant to present evidence raising a triable issue of fact. (Sce v Ach, 56 AD3d 457, 458 [2d Dept 2008]). Conclusory statements of fact or law are insufficient to sustain the defendant's burden. (Banco Popular N. Am. v Victory Taxi Mgt., 1 NY3d 381, 383 [2004]).

Here, plaintiff establishes, prima facie, that defendant executed a promissory note in his favor containing an unconditional promise to pay him, and that defendant defaulted in paying. I now address defendant's defenses.

A. Economic duress

Defendant alleges that at the closing, plaintiff demanded that she meet with him privately whereby he coerced her into signing the promissory note naming him instead of Amerimax as payee and without having the commission addressed in the closing statement, and threatened her that unless she signed the note, the deal would not close. (NYSCEF 9, 17).

"A contract may be voided on the ground of economic duress where the complaining party was compelled to agree to its terms by means of a wrongful threat which precluded the exercise of free will." (767 Third Ave. LLC v Orix Capital Mkts., LLC, 26 AD3d 216, 218 [1^st Dept 2006]). The defense of economic duress is unavailable where the complaining party fails to "repudiate the . . . agreement in prompt fashion, as well as . . . [accept] the benefits of the agreement, . . . ." (Philips S. Beach, LLC v ZC Speciality Ins. Co., 55 AD3d 493, 494 [1^st Dept 2008], lv denied 12 NY3d 713 [2009]; Mendel v Henry Phipps Plaza W., Inc., 27 AD3d 375, 376 [1^st Dept 2006]).

Absent any dispute that the note reflects that plaintiff reduced his commission and gave defendant time within which to pay it (see Liberty Marble v Elite Stone Setting Corp., 248 AD2d 302, 304 [1^st Dept 1998] [no claim of duress where defendant accepted $101,000 in consideration for release of claims against plaintiff]; cf. Philips S. Beach, LLC, 55 AD3d at 494 ["Plaintiff accepted the benefits of the settlement agreement to the extent it obtained a premature satisfaction of its existing mortgage to allow it to timely close with its new lender."]), or that defendant ratified the note after its execution by partially paying it (see Wujin Nanxiashu Secant Factory v Ti-Well Intl. Corp., 14 AD3d 352, 353 [1^st Dept 2005] [defendants failed to establish duress as they did not repudiate note and made partial payment on it, constituting ratification]), defendant fails to raise a triable issue as to whether she was compelled to agree to the terms of the note by means of a wrongful threat which precluded the exercise of her free will. Moreover, defendant does not explain why she did not seek the counsel of her attorney who was present at the closing.

B. Licensing requirement

Defendant's invocation of a defense based on plaintiff's alleged failure to hold a license is based on facts extrinsic to the note, and thus does not foreclose plaintiff from obtaining a judgment. In any event, as a licensed real estate broker, plaintiff properly negotiated, offered or attempted to negotiate the commercial mortgage for defendant. (See Banking Law § 590[2][b] [prohibiting, inter alia, the solicitation or negotiation of a residential mortgage loan absent license as mortgage broker]; see also id. § 590[1][a]).

C. Fraudulent inducement

Defendant again invokes a defense based on facts extrinsic to the note, which poses no obstacle to plaintiff's action on the note. (See Thomason's Nathan's Assoc. v Hajek, 169 AD2d 568, 568-569 [1^st Dept 1991] [as note made no reference to "collateral agreements or transactions," alleged fraud in inducing purchase of partnership interest constituted extrinsic evidence insufficient to defeat CPLR 3213 motion]). In any event, even if defendant's allegations are credited, she fails to allege that she would have even been able to secure a residential loan, there being no dispute that the property was and is a commercial property. (See White of Lake George Inc. v Bell, 251 AD2d 777, 778 [3d Dept 1998], appeal dismissed 92 NY2d 947 [record devoid of proof that plaintiffs would have obtained more favorable settlement absent defendant's alleged misrepresentation]).

D. Sanctions

That the parties disagree on the facts constitutes an insufficient basis for finding that defendant perjured herself, nor a sufficient ground for sanctions.

III. CONCLUSION

For all of the foregoing reasons, it is hereby

ORDERED, that plaintiff's motion for summary judgment in lieu of complaint is granted as against defendant, and the Clerk of the Court is directed to enter judgment in favor of plaintiff and against defendant in the amount of $16,000, together with interest at the statutory rate from January 31, 2016, until the date of entry of judgment, as calculated by the Clerk, and thereafter at the statutory rate, together with costs and disbursements to be taxed by the Clerk upon submission of an appropriate bill of costs.

ENTER:

/s/_________

Barbara Jaffe, JSC DATED: August 5, 2016

New York, New York