J.D. v. A.D.
| Decision Date | 27 February 2017 |
| Docket Number | 1*****/14 |
| Citation | 2017 NY Slip Op 50261 (U) |
| Parties | J.D., Plaintiff, v. A.D., JR and D. D., Defendants. |
| Court | New York Supreme Court |
Plaintiff was represented by
Andrew R. Schimler Esq.
42 Kingsbridge Ave.
Staten Island, NY 10314
Defendant Wife was represented by:
Jeremy Panzella Esq.
from the Law Firm of Menicucci Villa Celmi, PLLC.
2040 Victory Blvd.
Staten Island, New York 10314
Defendant Husband was represented by:
The Law Office of Dalia Zaza Esq.
3 School St. #303
Glen Cove, NY 11542
Plaintiff J. D. commenced this breach of contract action against his daughter D. D. ("Wife") and her soon to be former Husband A. D. Jr. ("Husband") for the return of $280, provided by him to the defendants in connection with the purchase of real property located **** Amboy Road (the "Amboy Road" property). Plaintiff and Wife contend this money was a loan to both defendants that was to be repaid to Plaintiff within six months of the closing date of that property. Defendant Husband contends it was a gift which he has no obligation to repay.
The defendants in this action are also in the process of a bitter, protracted, divorce proceeding that is currently pending before this Court. Among other issues the divorce involves allegations of domestic violence, unfit parenting, civil contempt against Husband and equitable distribution of real property, including the property at issue herein. In furtherance of this Court's Order dated November 24, 2014, the Amboy Road property was sold with the sales proceeds placed in one of the divorce attorney's escrow accounts. In this related contract action Plaintiff Mr. D. seeks judgment in his favor in the amount of $280, plus costs, disbursements, statutory interest running from the date of the breach and reasonable attorney's fees.
Plaintiff was represented throughout this matter by Andrew R. Schimler, Esquire. Defendant Wife was represented by Jeremy Panzella, Esquire of the law firm of Menicucci Villa Celmi, PLLC. Ms. Dalia Zaza, Esquire represented Defendant Husband. Ms. Zaza also represents Husband in the related divorce proceeding.
After a pre trial motion for summary judgment was denied by another Judge, this matter was transferred to this Part as a proceeding related to the divorce. This matter was tried before this Court on August 5, 2016, March 2, 2016,and November 17, 2017. Plaintiff testified on his own behalf and called his girlfriend J.C. as a witness. Plaintiff also admitted documents into evidence (Pl. Exs. 1-9). Plaintiff also testified in the underlying divorce case of which notice was taken (Pl. Ex. 9). Defendant D. D. testified on her own behalf. Defendant A. D. Jr. testified on his own behalf and introduced documents into evidence (Def. Ex.1).
Many of the facts relevant to this Court's decision are not disputed.
The defendants were married on March 27, 2004. They have two children who are the Plaintiff's grandchildren. Prior to commencement of this divorce action by his daughter, the defendant herein, Plaintiff had a loving and close relationship with Husband. However, this harmonious relationship turned acrimonious when Husband advised Plaintiff that he would not repay the $280, which is the subject of this lawsuit.
Plaintiff, defendant Wife, and J. C. all credibly testified that the parties had numerous conversations at various family gatherings concerning the need to relocate the defendant's electrical business from the marital home to another location. In accordance with these conversations, the defendants began jointly searching for a piece of property suitable for Husband's needs. The defendants asked Plaintiff to borrow $170, to buy a piece of residential real property from which the defendants would operate the electrical business "A.D. Electric." There is no dispute that the parties never intended to use this property as a second home. On January 4, 2012, Plaintiff wrote the requested check for $170,. (Pl. Ex. 1). On the face of this check, in the memo section, Plaintiff wrote the words "loan to purchase house" and included the account number for the defendants' joint account. (Pl. Ex. 1). Plaintiff then wrote "for deposit only" on the back of this check and deposited it into the defendants' joint bank account as a courtesy, because he was aware that they needed the funds urgently. Plaintiff and Defendant Wife credibly testified that Husband knew these funds had been deposited into their joint account.
Despite the loan the defendants did not acquire the parcel of property. Rather than returning the $170, at that time, the defendants asked, and Plaintiff agreed, to allow them to retain these funds in their joint bank account to be used toward the purchase of an alternate parcel of property. The parties continued to discuss the acquisition of property and to actively look for a suitable location. In the meantime, the $170, received from Plaintiff remained in the defendants' joint banking account.
On or about May 19, 2012, the defendants asked Plaintiff or more money. They had located a small house on a busy street that needed renovation but which they believed was ideal for their intended commercial usage. Plaintiff agreed to allow the defendants to use the original $170,, and agreed to loan them an additional $110,. Plaintiff handed the defendants a second check in the amount of $110,. On the face of this check, in the memo section, Plaintiff wrote the words "loan to D. and A. for house." (not redacted on check). This check was endorsed by the defendant (not redacted on check) Plaintiff and Defendant Wife credibly testified that it was agreed among all parties, including Husband, that Plaintiff would be repaid the total amount of $280,, without interest, within six months of closing on the Amboy Road property. The six-month period was necessary to allow the defendants to secure a mortgage against this property which would provide the funds necessary to pay Plaintiff back.
It is undisputed that Plaintiff tendered a total of $280, to the defendants. Plaintiff also concedes that he agreed to loan this money to the defendants without seeking interest on the principal. However, the parties disagree when it comes to the obligation of repayment. Husband testified that this money was a gift from Plaintiff to his daughter. He further testified that Plaintiff never sought repayment until the divorce was filed. This Court finds that Husband's testimony was patently incredible and controverted by his own written statements. On May 21, 2012, two days after the Amboy Road property purchase contract was executed, Husband texted Wife about the generosity of her father, stating:
(Pl. Ex. 3). (emphasis added).
A closing was held on August 14, 2013 at which time the funds at issue were used and a deed was issued in the names of both defendants. On August 14, 2012, a few days after the closing, Husband confirmed his understanding of the terms upon which the $280, would be repaid to Plaintiff. Husband once again texted Wife, stating:
"We bought a property yes its wrecked yes it's scary even for me financially and physically but let's stay focused we have 6 months to fix it and get the money out to pay back your dad." (Pl. Ex. 6). (emphasis added).
The six-month period which began on the closing date of August 14, 2013 made the $280, principal due back to Plaintiff in February of 2013. Plaintiff credibly testified that on or about February 12, 2013, he demanded that the defendants pay him back in full. To date, no monies have been repaid to Plaintiff from either defendant. Plaintiff seeks judgment in the principal amount of $280, together with statutory interest, fees and counsel fees.
The essential elements of any cause of action to recover damages for a breach of contract are, (1) the existence of a contract, (2) the plaintiff's performance pursuant to the contract, (3) the defendant's breach of its contractual obligations, and (4) damages resulting from that breach. See 143 Bergen St. LLC v. Ruderman, 144 AD3d 1002 (2d Dept. 2016); See also Tudor Ins. Co. v. Unithree Inv. Corp., 137 AD3d 1259 (2d Dept. 2016). The burden of proving the existence, terms and validity of a contract rests on the party seeking to enforce it. See Amica Mut. Ins. Co. v. Kingston Oil Supply Corp. 134 AD3d 750 (2d Dept. 2015).
In contrast, a defendant attempting to establish that a particular transaction was a gift, rather than a loan, has the burden of proof to show, by clear and convincing evidence, that the transaction was made with the requisite "donative intent." See Phelps v. Phelps, 128 AD3d 1545 (4th Dept. 2015). As Defendant Husband has alluded to the Statute of Frauds, it is worth noting that certain contracts must be set forth in a writing. See General Obligations Law '5-701; See also, Taranto v. Fritz, 83 AD2d 864 (2d Dept. 1981). However, an oral agreement may be enforceable so long as the terms are clear and definite and the conduct of the parties evinces mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms. See Kramer v. Greene, 142 AD3d 438 (1st Dept. 2016). An oral contract to repay a loan may be enforceable if the elements indicated above are met. See Alameldin v. Kings Castle Caterers, Inc., 53 AD3d 514 (2d Dept. 2008); See also King Serv. v. O'Brien, 206 AD2d 728 (3rd Dept. 1994).
Defendant Wife concedes that she and her Husband borrowed the money from her father. While this is not conclusive proof as to Husband, it is some evidence of the existence of a loan. Wife credibly testified that she and Husband were well aware that this loan had to be repaid in full within six months of the closing of the Amboy Road...
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