Singotiko v. Kenealy
| Decision Date | 26 July 2010 |
| Docket Number | Motion Sequence No. 002,Index No. 14880/09 |
| Citation | 2010 NY Slip Op 32094 |
| Parties | JACQUELINE SINGOTIKO,Plaintiff, v. J. BRADFORD KENEALY,Defendant. |
| Court | New York Supreme Court |
The following papers having been read on this motion:
Notice of Motion, Affidavits, & Exhibits...............1
Answering Affidavits...............2
The defendant moves pursuant to CPLR 2221 (f) for renewal and reargument of the plaintiff's motion for summary judgment in lieu of complaint based upon certain promissory notes. The defendant also seeks reconsideration of the defense opposition to that motion, and upon such reconsideration to deny the plaintiff's motion, or at least to permit discovery on the issue of damages prior to the conduct of a damages hearing. The plaintiff opposes this motion as procedurally flawed. The plaintiff contends the motion is based upon facts which was available to the defendant at the time of the plaintiff's motion for summary judgment. The underlying matter involves two promissory notes executedon October 7, 2005 and November 10, 2005.
The defendant states, in a March 25, 2010 affidavit, the January 20, 2010 court order there were material facts in dispute as to damages with respect to the plaintiff's motion for summary judgment. The defendant points to the March 24, 2010 affidavit by Jolene Cawley, the comptroller for Celtic Ventures LLC and the defendant for support of this instant motion. The defendant contends the disputed issues of fact should not have been resolved in the plaintiff's favor, and states transactions were directly linked to the note by the plaintiff's instructions. The defendant asserts $68,000.00 should be the subject of a hearing on the issue of damages as distinguished from liability. The defendant concedes the November 4, 2009 opposing affidavit to the plaintiff's motion for summary judgment was unclear about payments of principal; the defendant's computer system software inadvertently dealt with this transaction; and points to the interest/income notations in the memorandum portion of the defendant's draft. The defendant argues a hearing is necessary to ascertain the nature of $23,239.49 in payments, and adds the plaintiff never denied direction to the defendant of monthly $2,000.00 rent payments to be deducted from principal. The defendant also points to the March 25, 2010 affidavit by Richard Rauff about the payment procedure directed by the plaintiff to reduce the principal balance due to the plaintiff by $10,000.00 by payment of certain expenses due from the plaintiffs spouse to Rauff or Rauff s company, Stone Landing Corp. The defendant avers this latter circumstance, which was stated by the plaintiff by a speakertelephone in the defendant's office, was not raised because the defendant had not located the checks representing those payments. The defendant notes the plaintiff's replay affidavit admits a clash of material facts, and the defendant maintains credibility is an issue on the plaintiff's motion for summary judgment which should be resolved in the nonmovant's favor. The defendant argues summary judgment deprives the defendant of an opportunity provide a defense on the issue of credits directed by the plaintiff with respect to the two promissory notes. The defendant adds a hearing on the issues of material facts would not significantly prejudice the plaintiff.
Cawley states, in a March 24, 2010 affidavit, all interest payments were regularly made at three month intervals to the plaintiff or Kensington Realty which is wholly owned by the plaintiff. Cawley states all payments were regularly made until the early portion of 2007 when the plaintiff and her family moved into a Hauppauge, New York home owned by Londonderry Holdings LLC which is wholly owned by the defendant. Cawley asserts the plaintiff personally instructed her to deduct $2,000.00 monthly from the principal due on the two promissory notes, and make payments of $10,000.00 and $13,239.49 against the principal due on those notes. Cawley maintains the plaintiff told her that money covered the $4,000.00 monthly carrying charges for the plaintiff marketing her home. Cawley indicates the plaintiff and her family resided in the almost 3, 000 square foot dwelling ever since without making any payments other than the $2,000.00 in reduced principal. Cawley claims she did not explain to the defense attorneythat these payments were reductions in principal of the note, and that distinction was not clear enough to the Court. Cawley avers the plaintiff resided at the Hauppauge, New York home, and further payments should be credited as the affirmative defense of partial payment of the notes.
Rauff states, in a March 25, 2010 affidavit, he is an officer of Stone Landing Corp., and he was present at meeting on or about June 19, 2006, at 533 Broadway, Massapequa, New York with the plaintiff's spouse and the defendant. Rauff claims the plaintiff's spouse hired him to obtain approvals and install a septic system with complete construction of a dwelling in Centerport, New York. Rauff asserts there was a total installment of $10,000.00, but the plaintiff's spouse did not have the funds to pay the first installment, so the plaintiff's spouse got the money from his wife's account at the defendant's office. Rauff asserts the defendant then contacted the plaintiff on a speaker phone in Rauff s presence to make sure the plaintiff agreed to allow the defendant to make the payment to Rauff for her husband as a reduction of the principal due to the plaintiff on certain notes in the her favor from the defendant. Rauff avers the plaintiff authorized the payment of $10,000.00. Rauff adds a second check was paid on or about July 24, 2006.
The plaintiff's attorney states, in an April 13, 2010 affirmation, this defense motion is flawed because the defendant fails to identify any facts overlooked or misapprehended with respect to the plaintiff's motion. The plaintiff's attorney states thisdefense motion is based upon facts which were previously available to the defendant. The plaintiff's attorney notes the defendant never disputed the validity of the two promissory notes nor his default on the payment obligations, and unsuccessfully argued for an offset by money allegedly owed to the defendant from unrelated real estate transactions. The plaintiff's attorney asserts the plaintiff refutes the defendant's contention the purported payments of $23,239.49 constituted payment on the principal balance of the two promissory notes. The plaintiff's attorney points to the plaintiff's April 9, 2010 opposing affidavit; notes this defense motion is not supported by any documentary evidence such...
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