Rimberg v. Horowitz

• Decision Date: 15 June 2022
• Docket Number: 2019–12604,Index No. 508116/14
• Citation: 206 A.D.3d 832,171 N.Y.S.3d 104
• Parties: Robert RIMBERG, respondent, v. Harry HOROWITZ, appellant.
• Court: New York Supreme Court — Appellate Division

206 A.D.3d 832

171 N.Y.S.3d 104

Robert RIMBERG, respondent,

v.Harry HOROWITZ, appellant.

2019–12604

Index No. 508116/14

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

Argued—March 31, 2022

June 15, 2022

Alan J. Firestone, Staten Island, NY, for appellant.

Goldberg & Markus PLLC, New York, NY (Israel Goldberg and Helen J. Setton of counsel), for respondent.

ANGELA G. IANNACCI, J.P., REINALDO E. RIVERA, CHERYL E. CHAMBERS, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendant appeals from a judgment of the Supreme Court, Kings County (Devin P. Cohen, J.), dated September 27, 2019. The judgment, upon a decision of the same court dated June 17, 2019, made after a nonjury trial, is in favor of the plaintiff and against the defendant in the principal sum of $30,000.

ORDERED that the judgment is affirmed, with costs.

The plaintiff commenced this action to recover the sum of $30,000, allegedly representing the unpaid balance of sums advanced on behalf of the defendant upon an oral agreement. At the nonjury trial, the plaintiff testified that the parties’ agreement, entered into in early 2010, was for the purchase of three mortgage loans from JPMorgan Chase Bank (hereinafter Chase) using sums advanced, in part, by the plaintiff on behalf of the defendant, and, in other part, by nonparty Alex Varvaris, with the mortgage loans to be resold within 90 days to third parties, at which time the plaintiff would be repaid. The plaintiff further testified that after he wired $630,000 to Chase, the defendant informed him that the third-party sale had fallen through. According to the plaintiff, when he demanded that the defendant pay back his $630,000, the defendant replied by saying, inter alia, "let me work with Alex," and "I'm sure I can get him to do it." Thereafter, the plaintiff received checks totaling only $600,000. Upon receipt of that payment, and upon an assurance from the defendant that he would pay the remaining $30,000, the plaintiff assigned his 50% interest in the mortgage loans to an entity "associated" with Varvaris. The plaintiff testified that he repeatedly asked the defendant for the remaining $30,000, and the defendant said he was "trying to get Alex to pay it."

The defendant also testified at trial, and denied borrowing any money. The defendant testified that he knew of someone who was selling three notes, and he also knew that both the plaintiff and Varvaris were interested in buying notes. The defense theory was that, if there was any debtor, it was Varvaris, who agreed to remit $630,000 to the plaintiff, but that Varvaris subsequently "shorted" the plaintiff $30,000.

In a decision after trial, the Supreme Court held in favor of the plaintiff and against the defendant, finding, inter alia, that "the agreement was between the plaintiff and defendant, with defendant as borrower." Thereafter, a judgment dated September 27, 2018, was entered upon the decision in the principal sum of $30,000, and the defendant appeals.

In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, bearing in mind in a close case, that the trial judge had the advantage of seeing the witnesses and hearing the testimony (see Castaldi v. Syosset Cent. Sch. Dist., 203 A.D.3d 690, 692, 164 N.Y.S.3d 626 ; Crozier v. Sauers, 109 A.D.3d 507, 508, 970 N.Y.S.2d 323 ; Matter of Capizola v. Vantage Intl., 2 A.D.3d 843, 770 N.Y.S.2d 395 ). "Where the trial court's findings of fact rest in large measure on considerations relating to the credibility of witnesses, deference is owed to the trial court's credibility determinations" ( Crows Nest Mar., Inc. v. Delapaz, 181 A.D.3d 644, 645, 117 N.Y.S.3d 872 ; see Matter of Kassab v. Kasab, 195 A.D.3d 832, 836, 151 N.Y.S.3d 94 ). Here, in light of the evidence presented at trial, and giving the Supreme Court's credibility determinations due deference, we find no basis to disturb the court's determinations (see Crows Nest Mar., Inc. v. Delapaz, 181 A.D.3d at 645, 117 N.Y.S.3d 872 ; Morrone v. Costagliola, 151 A.D.3d 1055, 1056, 58 N.Y.S.3d 468 ).

The Supreme Court properly rejected the defendant's contention that the breach of contract cause of action was barred by the statute of frauds. Contrary to the...