Amrusi v. Nwaukoni

• Decision Date: 15 November 2017
• Citation: Amrusi v. Nwaukoni, 155 A.D.3d 814, 65 N.Y.S.3d 62 (N.Y. App. Div. 2017)
• Parties: David AMRUSI, appellant, v. Joyce NWAUKONI, respondent.
• Court: New York Supreme Court — Appellate Division

155 A.D.3d 814

65 N.Y.S.3d 62

David AMRUSI, appellant,

v.Joyce NWAUKONI, respondent.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 15, 2017.

Siri & Glimstad LLP, New York, NY (Aaron Siri and Mason Barney of counsel), for appellant.

Chinyere Onwuchekwa, Brooklyn, NY, for respondent.

MARK C. DILLON, J.P., RUTH C. BALKIN, L. PRISCILLA HALL, and HECTOR D. LaSALLE, JJ.

In an action, inter alia, in effect, to recover on a promissory note, the plaintiff appeals from an order of the Supreme Court, Queens County (Dufficy, J.), entered July 26, 2016, which granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendant's motion which was pursuant to CPLR 3211(a) to dismiss so much of the first cause of action as sought to recover unpaid installments which accrued after March 3, 2010, under the promissory note, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

On May 4, 2007, the plaintiff loaned $85,000 to the defendant. The loan was evidenced by a mortgage instrument incorporating by reference a promissory note providing that the defendant would make interest-only payments of $1,275 per month "until the principal of the loan is paid off." Five days later, on May 9, 2007, the plaintiff loaned an additional $15,000 to the defendant. The loan was evidenced by a mortgage instrument incorporating by reference a promissory note providing that the defendant would make interest-only payments of $1,500 per month "until the principal of the loan is paid off," and that the debt of $100,000 would be paid in full on or before September 8, 2008. The defendant executed both mortgage instruments before a notary public, and both instruments encumbered the same real property located in Brooklyn. Thereafter, the defendant tendered monthly payments from November 2007 until November 2008 and then ceased making any further payments. On March 3, 2016, the plaintiff commenced this action against the defendant, asserting causes of action to recover damages for breach of contract and unjust enrichment. In response, the defendant moved pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint. In the order appealed from, the Supreme Court granted the defendant's motion on the ground that the action was time-barred. The plaintiff appeals.

Initially, the Supreme Court should have granted dismissal of the second cause of action, alleging unjust enrichment, pursuant to CPLR 3211(a)(7) for failure to state a cause of action. " ‘The existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of the same subject matter’ " ( Saunders Ventures, Inc. v. Catcove Group, Inc., 151 A.D.3d 991, 995, 58 N.Y.S.3d 417, quoting Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388, 521 N.Y.S.2d 653, 516 N.E.2d 190 ). Here, the parties do not dispute that there was a valid note evidencing their loan transaction. The second cause of action alleging unjust enrichment was based on the same facts and sought the same damages as the first cause of action alleging breach of contract.

Thus, it was duplicative of the first cause of action and was subject to dismissal on that ground (see Corsello v. Verizon N.Y., Inc., 18 N.Y.3d 777, 790, 944 N.Y.S.2d 732, 967 N.E.2d 1177 ; Ochoa v. Montgomery, 132 A.D.3d 827, 828, 18 N.Y.S.3d 410 ).

"In resolving a motion to dismiss pursuant to CPLR 3211(a)(5), this Court must accept the facts as alleged in the complaint as true and accord the plaintiff the benefit of every possible favorable inference" ( Elia v. Perla, 150 A.D.3d 962, 963, 55 N.Y.S.3d 305 ). "To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired" ( Stewart v. GDC Tower at Greystone, 138 A.D.3d 729, 729, 30 N.Y.S.3d 638 ). If the defendant meets this initial burden, "the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations has been tolled, an exception to the limitations period is applicable, or the plaintiff actually commenced the action within the applicable limitations period" ( Quinn v. McCabe, Collins, McGeough & Fowler, LLP, 138 A.D.3d 1085, 1086, 30 N.Y.S.3d 288 ; see Elia v. Perla, 150 A.D.3d at 964, 55 N.Y.S.3d 305 ; Williams–Guillaume v. Bank of Am., N.A., 130 A.D.3d 1016, 14 N.Y.S.3d 466 ).

Generally, a promissory note is enforceable under traditional principles of contract law (see Shlang v. Inbar, 149 A.D.3d 1402, 52 N.Y.S.3d 724 ). "The statute of limitations for an action to recover on a promissory note is six years" ( Sce v. Ach, 56 A.D.3d 457, 459, 867 N.Y.S.2d 140 ; see CPLR 213[2] ). Where, as here, a note is payable in installments and the debt has not been accelerated, there are separate causes of action for each installment accrued, and the statute of limitations begins to run on the date each installment becomes due and is defaulted upon (see Morrison v. Zaglool, 88 A.D.3d 856, 858, 931 N.Y.S.2d 82 ). A contract must be enforced according to the plain language of its terms and is unambiguous "if the language it uses has ‘a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion’ " ( Greenfield v. Philles Records, 98 N.Y.2d 562, 569, 750 N.Y.S.2d 565, 780 N.E.2d 166, quoting Breed v. Insurance Co. of N. Am., 46 N.Y.2d 351, 355, 413 N.Y.S.2d 352, 385 N.E.2d 1280 ). "To determine whether a writing is...