Opinion
Index No. 656108/2020 Motion Seq. No. 003
01-16-2024
DAVID SHAFER Plaintiff, v. BERT DWECK, Defendant
Unpublished Opinion
Motion Date 11/17/2023
DECISION + ORDER ON MOTION
HON. JOEL M. COHEN, JUIDGE
The following e-filed documents, listed by NYSCEF document number (Motion 003) 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89 were read on this motion for SUMMARY JUDGMENT.
This action involves money allegedly loaned by Plaintiff David Shafer ("Shafer") to Defendant Bert Dweck ("Dweck") on four separate occasions between February 24, 2020, and April 23, 2020, totaling $466,000, which Plaintiff alleges has not been repaid. Plaintiff now moves for summary judgment against the Defendant on its remaining claims for (1) breach of contract, (2) unjust enrichment and (3) money lent. For the following reasons, Plaintiffs motion is granted in part.
Plaintiff has met its burden of establishing a prima facie cause for breach of contract.
The elements of a breach of contract claim under New York law are (1) the existence of a contract, (2) plaintiffs performance under that contract, (3) defendant's breach, and (4) damages (see Belle Lighting LLC v Artisan Constr. Partners LLC, 178 A.D.3d 605, 606 [1st Dept 2019]). Through the text messages submitted, Plaintiff has demonstrated the existence of an agreement whereby he would give certain amounts to Defendant, and Defendant would repay by a date certain and with specified interest. Specifically, on February 25, 2020, Defendant received $200,000.00 from Plaintiff, which he agreed to repay within 45 days along with interest of $50,000, for a total repayment of $250,000. On March 3, 2020, Defendant received $150,000.00 from Plaintiff, which he agreed to repay within 45 days with interest of $30,000 for a total payment of $ 180,000. On March 9, 2020, Defendant received $50,000 from Plaintiff, which he agreed to repay within 30 days with interest of $ 10,000 for a total repayment of $60,000. On April 23, 2020, Defendant received $66,000 from Plaintiff, which Defendant agreed to repay within 14 days with interest of $6,000, for a total repayment of $72,000. On May 8, 2020, Defendant texted Plaintiff acknowledge the total outstanding amount as being $562,000 (see NYSCEF 72).
Defendant does not dispute that he received the funds at issue. In his Answer and his response to Plaintiffs Rule 19-a Statement of Material Facts, he admitted: (1) to receiving $466,000.00 from Plaintiff; (2) that he has not paid the money back and (3) that he has not compensated Plaintiff in any manner (see NYSCEF 44; 82). Rather, Defendant argues that summary judgment must be denied on these claims because Plaintiff has not established that he has been damaged by any failure or refusal of the Defendant to repay any purported monies he loaned to him. Specifically, Defendant argues that at least $266,000 of the $466,000 the Plaintiff claims to have sent to the Defendant came from a company known as Shafer Surgical, LLC, not Shafer. However, Plaintiff has now supplemented the record to address the Defendant's concern that a judgment as to the claims of Plaintiff would leave Defendant open to any claims that Shafer Surgical LLC might possess, and submitted a signed and notarized assignment of claims of Shafer Surgical LLC to David Shafer, dated October 16, 2023 (NYSCEF 88; 89). With this concern resolved (see Hui v E. Broadway Mall, Inc., 4 N.Y.3d 790, 791-92 [2005]; Allen v Zizzi Const. Corp., 2022 NY Slip Op 34234[U], 7 [Sup Ct, NY County 2022] ["If ... a plaintiff, in their personal capacity, sues on a claim which properly belongs to a corporation, the mistake may be corrected by assigning the corporation's claim to the plaintiff']), Defendant has failed to raise any other issue of fact as to Plaintiffs claim for summary judgment.
At oral argument on October 2, 2023, the Court gave Plaintiff the opportunity to supplement the record to address this issue.
At his deposition, Defendant invoked the Fifth Amendment over 60 times (see NYSCEF 67). While that does not relieve Plaintiff "of his obligation to prove a case before he becomes entitled to a judgment" (Steinbrecher v Wapnick, 24 N.Y.2d 354, 365 [1969]), which Plaintiff has done here, it does support Plaintiffs assertion that Defendant has failed to raise any material issues of fact.
For the foregoing reasons, summary judgment in favor of Plaintiff on its breach of contract claim is granted. In view of that finding, Plaintiff s alternative quasi-contract claims (unjust enrichment and money lent) are dismissed as duplicative.
Accordingly, it is
ORDERED that Plaintiffs motion for summary judgment on the Amended Complaint is GRANTED as to Plaintiff s breach of contract claim; the claims for unjust enrichment and money lent are dismissed as duplicative; it is further
ORDERED that on upon submission of a proposed judgment in the appropriate form, the Clerk of the Court is directed to enter judgment in favor of Plaintiff and against Defendant in the sum of $562,000.00, representing the principal loan amounts and agreed upon interest through each due date (which Plaintiff should separately include in the proposed judgment), plus prejudgment interest at the statutory rate of 9% per annum from the date of each breach until entry of judgment, as calculated by the Clerk, together with costs and disbursements as taxed by the Clerk upon submission of an appropriate bill of costs; and it is further
ORDERED that Plaintiff upload a copy of the transcript of the proceedings to NYSCEF upon receipt. This constitutes the Decision and Order of the Court.