Opinion
Index No. CV-018637-24/KI
10-03-2024
Ping Li; Sumin Xue, Plaintiffs, v. Feng Li, Defendant.
Self-Represented Plaintiffs Counsel for Defendant Vincent S. Wong
Unpublished Opinion
Self-Represented Plaintiffs
Counsel for Defendant Vincent S. Wong
LOLA WATERMAN, JUDGE
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers Numbered
Order to show Cause/ Notice of Motion and Affidavits /Affirmations annexed 1 & 2 (Exh. 1); 4 & 5 (Exh. 1)
Answering Affidavits/ Affirmations 3 (Exh. 1-8); 6 (Exh. 1-8)
Reply Affidavits/ Affirmations
Memoranda of Law
Other
Upon oral arguments on September 30, 2024, and the foregoing cited papers, the Decision/Order on the Defendant's Pre-Answer Motions to Dismiss in the matters bearing index numbers CV-018637-24/KI and CV-018638-24/KI are GRANTED for the following reasons:
On or about August 23, 2024, Plaintiffs commenced these two actions to recover monies from Defendant. The first Endorsed Complaint is for $50,000.00 for unpaid loans, and the second Endorsed Complaint is for $23,500.00 for an additional unpaid loan and for extortion and blackmail.
Defendant appeared by counsel and Plaintiffs appeared self-represented with the benefit of a Mandarin interpreter for oral arguments on these motions. As both complaints contain the same parties and have substantially identical and intertwined issues, they are consolidated in this singular decision, dismissing them both.
FIRST COMPLAINT: UNPAID LOANS FOR $50,000.00
ARGUMENTS
Defendant movant argued that Plaintiffs' claims are both time-barred by the applicable statute of limitations under CPLR 3211 (a)(5) and fail to state a cause of action upon which relief can be granted under CPLR 3211(a)(7). Plaintiffs opposed.
Defendant's motions to dismiss argue that the sole transaction at issue in the two matters was a loan between the parties for $50,000.00 cash in May 2007, which is time-barred by the applicable six-year statute of limitations for breach of contract.
Plaintiffs' opposition papers included a written acknowledgement allegedly signed by Defendant in Mandarin on January 27, 2018. The written acknowledgement indicates that $50,000.00 cash was borrowed by Defendant from Plaintiffs in May 2007 and that several payments were made towards the loan, the last payment in 2015, leaving a balance of $26,500.00. Plaintiffs contend that in 2018, Defendant signed a "confirmation note" confirming the remaining balance had not been paid. Furthermore, Plaintiffs argue that there was a family meeting on May 11, 2024, wherein Defendant and another relative were present and it was at this meeting the Defendant defaulted on repaying the loan. Plaintiffs state Defendant's statements in her affidavit that she did not accept the $50,000.00 is false. Plaintiffs provided proof of other loans they have allegedly given to defendant since the 2007 loan, inter alia, mortgage payments made on Defendant's behalf. Plaintiffs' position is that any statute of limitations period should have begun to run from May 11, 2024, when the parties had a family meeting.
The Mandarin agreement was translated in English and certified by a Notary Public.
Defendant waived a written Reply but further reiterated on the record that the statute of limitations bars prosecution of both claims and that there is no foundational basis to admit Plaintiffs' exhibits attached to their opposition papers, including the translation of the alleged "confirmation note" between the parties. Defendant contends that the documents are not only irrelevant to the time-barred breach of contract claim but they contribute to the argument in support of Plaintiffs' failure to state of cause of action, pursuant to CPLR 3211(a)(7).
LEGAL STANDARDS
CPLR 3211 (a) (5) provides that the court can dismiss a complaint as barred by the statute of limitations. See, Smith, Gambrell & Russell, LLP v. 3 W. 16th St., LLC, 220 A.D.3d 432 (1st Dept., 2023). On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (5) on the ground that is barred by the statute of limitations, the defendant bears the initial burden of establishing, prima facie, that the time in which to commence an action has expired, whereupon the burden shifts to the plaintiff to raise a question of fact. Siegler v Lippe, 189 A.D.3d 903 (2nd Dept., 2020)
CPLR 3211 (a) (7) provides that "the court must give the pleading a liberal construction, accept the facts alleged in the complaint to be true and afford the plaintiff the benefit of every possible favorable inference." TV Tech Mgrs., Inc. v. Cohen, 227 A.D.3d 838 (2nd Dept., 2024). Additionally, "[i]f the court considers evidentiary material [in support of the motion to dismiss], the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he or she has stated one." Id. The court must also "determine only whether the facts as alleged fit within any cognizable legal theory. Whether a plaintiff can ultimately establish his or her allegations is not part of the calculus in determining a motion to dismiss." Novak v. Sisters of the Heart of Mary, 210 A.D.3d 1104 (2nd Dept., 2022).
Article 2 of the CPLR (' Limitations of Time'), provides that "[a]n action... must be commenced within the time specified in this article unless... a shorter time is prescribed by written agreement...." Filasky v. Andover Cos., 2024 NY App. Div. LEXIS 4762, 3-5 (2nd Dept., 2024). "The statute of limitations for a cause of action alleging breach of contract is six years...." Id. "[A] breach of contract cause of action accrues at the time of the breach...." Id. However, New York courts have held that pursuant to General Obligations Law §17-101, written acknowledgements signed by a debtor may extend or restart the statute of limitations and effectively revives a time-barred claim if there was an intention to pay. See also, Deutsche Bank Natl. Trust Co. v Flagstar Capital Mkts., 32 N.Y.3d 139 (2018), (An agreement to extend the statute of limitations that does not comply with these requirements "has no effect" (General Obligations Law § 17-103 [3]). In addition, CPLR 201 provides that an action "must be commenced within the time specified in this article unless a different time is prescribed by law or a shorter time is prescribed by written agreement," and "[n]o court shall extend the time limited by law for the commencement of an action.").
"To constitute an acknowledgment of a debt, a writing must recognize the existing debt and must contain nothing inconsistent with an intention on the part of the debtor to pay it. Whether a purported acknowledgment is sufficient to restart the running of a period of limitations depends on the circumstances of the individual case." Matter of Hollis, 180 A.D.3d 680 (2nd Dept., 2020). Moreover, the statute of limitations cannot be extended by subsequent oral agreement. See, Gad v Almod Diamonds Ltd., 147 A.D.3d 417, 45 N.Y.S.3d 790 (1st Dept., 2017).
DISCUSSION
It is undisputed that the applicable statute of limitations for a breach of contract claim is six (6) years. What is at contention is the time when the cause of action begun to accrue. Defendant argues that the clock began to run at the time the loan was made in May 2007, and that the statute of limitations would have run in May 2013, barring the Plaintiffs from bringing this action. Plaintiffs believe the clock began to run on May 11, 2024, but do not put forth any reasonable arguments to support why they believe the cause of action accrued then.
Applying the applicable standards, the court finds Defendant has made a prima facie showing that the time by which to commence this action has expired, whereupon the burden shifts to the plaintiff to rebut the presumption that their action is time-barred. Despite accepting the facts alleged in the complaint and Plaintiffs' supporting papers to be true and affording Plaintiffs the benefit of every possible favorable inference, the court finds that Plaintiffs have failed to rebut the presumption that their action is time-barred.
It is important to note that the "confirmation note" allegedly signed by Defendant on January 27, 2018, cannot legally extend, or restart the statute of limitations on the loan that was made in May 2007, and even if considered, would have been time-barred by January 27, 2024. Moreover, even if the court considered the time the last payment was allegedly made towards the loan in 2015, this action would still be time-barred. Lastly, in affording every possible inference, and considering the COVID-19 pandemic Executive Order Section 29-a (1) signed by the New York State Governor that tolled the statute of limitations for 228 days or roughly seven and a half months, the complaint is still time-barred by the applicable six-year statute of limitations because this case was commenced on August 23, 2024.
Consequently, the court finds that Defendant has established, prima facie, that Plaintiffs' first complaint is time-barred by the applicable six-year statute of limitations and Defendant's other arguments in support of dismissal are rendered academic.
SECOND COMPLAINT: EXTORTION & BLACKMAIL CLAIMS AND RETURN OF ADDITIONAL LOAN FOR $23,500.00
In their second complaint, Plaintiffs allege they loaned $23,500.00 to Defendant in 2005. They also allege that Defendant has extorted money from Plaintiffs and blackmailed them.
For purposes of brevity, the court reiterates the sections above as applicable herein and finds that Defendant has made a prima facie showing that Plaintiffs are time-barred from recovering the alleged 2005 loan from Defendant, and Plaintiffs have failed to rebut the presumption that this action is time-barred.
Regarding Plaintiffs' complaint alleging extortion and blackmail, these two are construed by the courts as synonymous. TRB Acquisitions LLC v. Yedid, 215 A.D.3d 40 (1st Dept., 2023). "The term 'extortion' means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." 18 USCA § 1951 (b) (2). It is well-settled that an extortion includes obtaining property from another by fear or under color of official right and that consent is an essential element. See, People v Hagen, 212 AD 879, 208 N.Y.S. 235 (2nd Dept., 1925); Manna Amsterdam Ave., LLC v Epstein, 2021 NY Slip Op 30762(U) (Kings County Sup. Ct., 2021).
Here, even if the Complaint adequately pled most elements, it lacks consent. Plaintiffs have not presented any evidence to support they consented or agreed to lend the defendant money because they were "induced by wrongful use of actual or threatened force, violence, or fear" by Defendant. Therefore, the court finds that Defendant has made a prima facie showing, pursuant to CPLR 3211 (a)(7), that Plaintiffs have failed to state a cause of action for extortion or blackmail. Plaintiffs have not successfully rebutted the presumption that the consent element of their extortion and blackmail cause of action is absent. Accordingly, the branch of defendant's motion to dismiss the cause of action for extortion or black mail is granted.
CONCLUSION
Upon due deliberation had thereon, the two motions to dismiss in both matters are GRANTED. Both complaints are dismissed with prejudice.
This constitutes the decision and order of the court.