Kramer v. Harris

• Decision Date: 08 December 1959
• Citation: 9 A.D.2d 282,193 N.Y.S.2d 548
• Parties: Sidney KRAMER, Plaintiff-Respondent, v. Al HARRIS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 548

193 N.Y.S.2d 548

9 A.D.2d 282

Sidney KRAMER, Plaintiff-Respondent, v. Al HARRIS, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Dec. 8, 1959.

Samuel Slote, New York City, for defendant-appellant.

Martin M. Berger, New York City, of counsel (Herbert Kramer, New York City, with him on the brief, Berger & Kramer, New York City, attys.) for plaintiff-respondent.

Before BOTEIN, P. J., and BREITEL, RABIN, M. M. FRANK and VALENTE, JJ.

PER CURIAM.

Special Term properly granted plaintiff's motion for summary judgment in this action to recover on a loan for $10,000.

Concededly, plaintiff, a friend of defendant, advanced the sum of $10,000 following a conversation with defendant and the latter's wife. The loan took the form of two checks each in the amount of $5,000 payable to defendant, one of which defendant admits endorsing. Concededly, both checks found their way to one Ben Cohen, a Florida lawyer, where they were applied to the benefit of defendant in a Las Vegas hotel syndicated investment. Concedely, Ben Cohen sent a letter to plaintiff reciting the loan from plaintiff to defendant and saying that he would hold the syndicate debentures allocable to defendant to secure the loan to defendant. Plaintiff wrote defendant a letter in Florida, at defendant's place of sojourn, asking for payment. To this, plaintiff received a response, bearing defendant's name, which acknowledge receipt of plaintiff's letter and stated that defendant would like to send plaintiff some money but that at the present time it was impossible as defendant was 'out of action.'

Defendant, as noted, admits endorsing one of the two checks and also admits that the proceeds went to Ben Cohen to be applied to his benefit in the Las Vegas venture. So long as defendant admits endorsing one check, there is no special significance in his denial of having endorsed the other. At the same time he asserts that he gave the endorsed check to his wife and that she delivered the two checks to Ben Cohen, which is still completely consonant with a loan from plaintiff to defendant.

Defendant's explanation of these facts, most of which are undisputed, is to stress that one of the checks was not endorsed by him, and that the letter attributed to him was neither signed nor authorized by him. He also says the loan was made to his now estranged wife. To further explain this, he claims that from time to time he deposited his own funds with his wife and that she borrowed from plaintiff to repay him. In nowise is there any detail supplied of the circumstances or conversations of the transaction. There is no explanation about the arrangements for securing the loan by the debentures, which arrangements were never fulfilled. Defendant does not say how much he deposited with his wife, how much she owed him at the time of this transaction, or why she was not able to repay to him his own funds; nor has he made any effort to have her made a party to this action.

Defendant, although he admits receiving a letter from plaintiff, offers not the slightest explanation as to how plaintiff received the response he did to plaintiff's dunning letter addressed to him. Moreover, defendant's only explanation as to why Ben Cohen's letter refers to the loan as being made to him, and not to his wife, is that Mr. Cohen must have obtained this information from defendant's wife, with whom defendant was then allegedly having marital difficulties.

Defendant's tenuous effort at issue creation implemented by incredible conclusory facts and gross assertions of coincidental forgeries is not sufficient to defeat summary judgment (Richard v. Credit Suisse, 242 N.Y. 346, 350, 152 N.E. 110, 111, 45 A.L.R. 1041; Hanrog Distributing Corp. v. Hanioti, 10 Misc.2d 659, 54 N.Y.S.2d 500, Shientag, J.). After reading all of defendant's submission there remains only a mystery as to what actually happened, instead of a contradictory factual version which would support defendant's contentions. It is not enough that a defendant deny a plaintiff's presentation in summary judgment. He must state his version, and he must do so in evidentiary form (O'Meara Co. v. National Park Bank, 239 N.Y. 386, 395, 146 N.E. 636, 638, 39 A.L.R. 747; Dodwell & Co., Ltd. v. Silverman, 234 App.Div. 362, 254 N.Y.S. 746). This is what is lacking in this case.

The purpose of summary judgment procedure is to search out the evidentiary facts and determine the existence of an issue from them. Bald conclusory assertions, even if believable, are not enough. Bald conclusory assertions, which defy reality and are inconsistent with the pattern of events, are even less so.

Accordingly, the order granting plaintiff's summary judgment should be affirmed, on the law and the facts, with costs to plaintiff-respondent.

Order and judgment entered thereon affirmed with $20 costs and disbursements to the respondent.

All concur except VALENTE, J., who dissents and votes to deny summary judgment in a dissenting...