Singer Asset Finance Company, LLC v. Melvin

• Decision Date: 05 October 2006
• Docket Number: 8738.,8739.
• Citation: 33 A.D.3d 355,2006 NY Slip Op 07198,822 N.Y.S.2d 68
• Parties: SINGER ASSET FINANCE COMPANY, LLC, Appellant, v. KIM Y. MELVIN, Respondent, et al., Intervenors-Defendants.
• Court: New York Supreme Court — Appellate Division

33 A.D.3d 355

822 N.Y.S.2d 68

2006 NY Slip Op 07198

SINGER ASSET FINANCE COMPANY, LLC, Appellant, v. KIM Y. MELVIN, Respondent, et al., Intervenors-Defendants.

8738.

8739.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided October 5, 2006.

Order and judgment (one paper), Supreme Court, New York County (Jane S. Solomon, J.), entered July 19, 2005, which, to the extent appealed from as limited by plaintiff's brief, granted plaintiff's motion for summary judgment on the third cause of action for unjust enrichment and denied the motion to dismiss the first, fourth and fifth causes of action for breach of contract, injunctive relief and declaratory relief, unanimously modified, on the law, the motion denied with respect to the third cause of action and granted with respect to the first and fourth causes of action, and otherwise affirmed, without costs, and the matter remanded for further proceedings. Appeal from a prior order, same court and Justice, entered December 2, 2004, unanimously dismissed, without costs, as superseded by the appeal from the subsequent order.

Defendant Melvin, a resident of North Carolina, and nonparty Commerce and Industry Insurance Company entered into a structured settlement agreement in connection with a personal injury claim asserted by Melvin against Commerce. Pursuant to the terms of the settlement agreement, Melvin was guaranteed monthly payments of $1,250 for 360 months commencing January 1, 1986 through and including December 1, 2015, and life thereafter, plus six lump-sum payments in increasing amounts due every five years from 1991 through 2016. Commerce assigned its obligation to make these payments to intervenor-defendant Transatlantic Reinsurance Company. In order to fund its obligation under the settlement agreement, Transatlantic purchased an annuity from intervenor-defendant American International Life Assurance Company of New York.

Plaintiff, a limited liability company with offices in New York City and Boca Raton, is in the business of purchasing future structured payments in exchange for a present, sharply discounted, lump-sum amount. In November 1998, plaintiff and Melvin entered into an agreement in which Melvin sold her interest in certain settlement payments to plaintiff in exchange for a discounted lump-sum amount. It is uncontested that this agreement was not the target of any complaint by either party and is not the subject of this lawsuit.

Thereafter, the parties entered into a second purchase agreement dated September 17, 1999, consisting of 17 pages, single-spaced, pursuant to which Melvin, in consideration for the sum of $47,422, sold and assigned to plaintiff her title to and interest in 72 monthly settlement payments running from April 1, 2002 through March 1, 2008 and one lump-sum payment of $20,000 due on January 1, 2006, totaling $110,000. The purchase agreement further provided that Melvin pledge as collateral her interest in all the payments due under the structured settlement agreement. In the event of default of one of the payments, Melvin would have to pay, within 10 days of demand, the entire amount of the assigned payments. In addition, despite the lack of connection to New York, the purchase agreement provided that Melvin consent to personal jurisdiction in New York, venue in New York County and entry of judgment in the event of a default.

Melvin notified intervenors that she had assigned her right to certain payments as defined in the purchase agreement to plaintiff and directed that the underlying structured settlement payments be sent to a post office box in New Jersey. Plaintiff paid Melvin $47,422 on or about October 1, 1999. Apparently the notification of assignment was not promptly honored by intervenors, and Melvin did not forward her payments to plaintiff. Consequently, plaintiff brought this action for, inter alia, breach of the purchase agreement. In response, Melvin claimed that she was never provided with a complete contract and that plaintiff had rushed her into the deal before the effective date of a new law in North Carolina that would govern these transactions.

Plaintiff moved for summary judgment, offering, in addition to the purchase agreement, Melvin's deposition testimony in which she had refused to answer questions regarding the transaction and purchase agreement. In addition, plaintiff relied on the deposition testimony of the notary public, a church deacon, who witnessed Melvin, a member of his church, sign the purchase agreement. Plaintiff also introduced evidence that Melvin had received and deposited in the bank the consideration plaintiff had paid pursuant to the purchase agreement. Melvin apparently served untimely opposition papers, which the court did not consider. In any event, Melvin did appear, pro se, at oral argument on the motion.

The court granted plaintiff summary judgment on the third cause of action for unjust enrichment, awarding the principal amount of $47,422, interest from October 1, 1999, costs, disbursements and attorneys' fees for a total sum of $110,375.77. The court found that plaintiff was not entitled to the entire amount of assigned payment "because Melvin is not the culpable party in failing to have the intervenors pay over...