Bell v. Xanthopoulos
| Decision Date | 24 March 1994 |
| Citation | 609 N.Y.S.2d 428,202 A.D.2d 910 |
| Parties | Ida BELL, Respondent, v. John A. XANTHOPOULOS, Appellant et al., Defendant. |
| Court | New York Supreme Court — Appellate Division |
John A. Xanthopoulos, in pro. per.
Paul D. Jaffe, White Plains, for respondent.
Before CARDONA, P.J., and MIKOLL, CREW and WEISS, JJ.
Appeal (transferred to this court by order of the Appellate Division, Second Department) from a judgment of the Supreme Court (Nicolai, J.), entered September 11, 1991 in Westchester County, which partially granted plaintiff's motion for summary judgment.
Plaintiff commenced this action by service of a summons and complaint to recover $28,123 allegedly loaned to defendant John A. Xanthopoulos (hereinafter defendant) and defendant Thorobrook Farms Inc. between March 25, 1988 and December 2, 1988. Defendant is the president of Thorobrook, which operated a riding stable in the Town of Harrison, Westchester County. Following defendant's service of a pro se answer, plaintiff moved for summary judgment. Supreme Court granted partial summary judgment against defendant 1 for sums totaling $23,123. Defendant appeals. Summary judgment was properly granted in plaintiff's favor, though not on the theory relied upon by Supreme Court (see, State of New York v. Peerless Ins. Co., 117 A.D.2d 370, 373, 503 N.Y.S.2d 448).
In support of her motion, plaintiff submitted her affidavit and that of her father, Nicholas Calandro, stating in substance that defendant asked Calandro for money and that he (Calandro) arranged for plaintiff to loan the money to defendant personally; that the moneys were delivered to defendant and that, despite demands, none of the moneys had been repaid. Plaintiff also submitted documentary proof of her claim consisting of three handwritten documents on Thorobrook stationery, each signed by defendant, dated March 25, 1988, June 1, 1988 and December 2, 1988. The first acknowledges receipt of $5,000 from "Nicky". The second acknowledges a debt owed by Thorobrook to plaintiff in the amount of $22,123, payable in two years. The third is a promissory note containing a personal guarantee to pay either "Nick" or plaintiff the sum of $1,000 within 60 days.
In opposition to the motion for summary judgment, defendant submitted his affidavit. The affidavit stated in substance that defendant never borrowed the sum of $5,000 from Calandro, plaintiff or "anyone else on March 25, 1988 " (emphasis supplied), that the other two debts were corporate debts and that he signed the other two documents in his representative capacity as "president" of Thorobrook.
In its decision, Supreme Court determined that the June 1, 1988 and December 2, 1988 documents were promissory notes on which defendant was personally liable because he signed them without a showing of representative capacity (see, UCC 3-403). This decision, as well as the arguments advanced by defendant, did not take into consideration the basis of plaintiff's motion for summary judgment. Plaintiff did not move for summary judgment in lieu of a complaint contending that the handwritten documents constituted "instrument[s] for the payment of money only" (CPLR 3213). She does not seek to recover moneys from defendant based upon his execution of promissory notes but upon his agreement, express or implied, to repay moneys he borrowed. On this motion, the three documents have no evidentiary value beyond showing the amounts of money and the dates on which defendant received them.
Because summary judgment is a drastic remedy, we have carefully scrutinized the affidavits in the light most favorable to defendant (see, Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 231, 413 N.Y.S.2d 141, 385 N.E.2d 1068). Plaintiff's proof established that defendant received sums from her totaling $28,123, that said sums constituted a loan and that no part of these moneys has been repaid. With this proof plaintiff met her initial burden of demonstrating her entitlement to judgment as a matter of law (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562...
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...the loan was made to George Frenkel or LGGNY. The only case cited by the Plaintiff with similar facts is Bell v. Xanthopoulos, 202 A.D.2d 910, 912, 609 N.Y.S.2d 428, 430 (3d Dept. 1994). In that case, the New York Appellate Division granted summary judgment to the plaintiff who lent money t......
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