Spilman v. Matyas
| Decision Date | 17 October 2019 |
| Docket Number | INDEX NO. 515144/2017 |
| Citation | 2019 NY Slip Op 33222 (U) |
| Parties | SHEYA SPILMAN, Plaintiff, v. YOEL DOVID MATYAS, Defendant. |
| Court | New York Supreme Court |
At an IAS Term, Part 29 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 17th day of October, 2019.
PRESENT: HON. WAYNE P. SAITTA, Justice.
The following e-filed papers read herein:
| Papers Numbered |
| Notice of Motion/Order to Show Cause/ |
| Petition/Cross Motion and |
| Affidavits (Affirmations) Annexed |
| 62-81 83-84, 86-96 |
| Opposing Affidavits (Affirmations) |
| 109-116 |
| Reply Affidavits (Affirmations) |
| __________ |
| Memoranda of Law |
| 82 85 108 120 |
Upon the foregoing papers, in this action by plaintiff Sheya Spilman (plaintiff) against defendant Yoel Dovid Matyas (defendant) to recover monies owed to him, plaintiff moves, under motion sequence number four, for an order: (1) pursuant to CPLR 3212, granting him summary judgment against defendant on the ground that no genuine material issue of fact exists; and (2) requiring defendant to pay all of his fees and costs associated with this action.1Defendant moves, under motion sequence number five, for an order, pursuant to CPLR 3212, granting him summary judgment dismissing plaintiff's complaint against him.
On October 22, 2014, plaintiff and defendant entered into an agreement, entitled "Limited Partnership Agreement" (the First Agreement). The First Agreement set forth that defendant was the sole owner of a packaging business known as Exclusive Packaging, and that defendant was "ask[ing plaintiff] to invest a certain sum of money into the business, in order to buy a container from China for the business." The First Agreement provided that plaintiff was to be "a full partner in this particular business, and that which arises from it in the future." The First Agreement set forth that plaintiff was to invest $68,000 in the business to enable the purchase and delivery of one container from China, and that defendant was required to "manage a special account so as not to mix up the funds of [plaintiff] into [defendant's] overall business." The First Agreement stated that "[t]he two parties are full partners in [the] ownership of the goods of the container, and in all its benefits and responsibilities, either when it comes to [a] profit or to a loss . . . as well as to all types of decision making about it."
The First Agreement set forth that in exchange for plaintiff's $68,000 investment, "all of the gross profit of the container's goods, up to twenty two percent gross, is to be sharedhalf and half by them," and profits above this amount would belong to defendant alone. In other words, each party was to receive up to 11% of the profits above the principal amount. The First Agreement stated that the goods in the container (which were packaging materials) would be sold and the proceeds collected "[w]ithin approximately 4 months." The First Agreement also stated that any future agreements would "be done according to the regime provided in this agreement."
Thereafter, defendant, again, sought additional funds from plaintiff to help him purchase another new container for his business. On January 26, 2015, plaintiff and defendant entered into another agreement, whereby plaintiff provided defendant with $23,000 to be repaid within two months with up to six percent of the profits (the Second Agreement).
On February 24, 2015, plaintiff and defendant entered into a third agreement, whereby plaintiff gave defendant $12,000 more to be repaid with two months with up to six percent of the profits (the Third Agreement). Thus, the total amount of money given by plaintiff to defendant for his business was $103,000. Defendant does not dispute that he and plaintiff entered into these three agreements and that plaintiff gave him these funds.
Plaintiff asserts that in the Spring of 2015, defendant confirmed the amounts owed pursuant to each of the agreements, but told him that he would have to wait to be paid because he was preoccupied with a personal matter involving one of his family members. Plaintiff further asserts that in the summer of 2015, defendant told him that he would havean answer with respect to paying him by July 13, 2015, which he then changed to July 14, 2015, and finally stated that he needed until December 5, 2015. Plaintiff states that when defendant met with him, defendant then stated that he would need to wait until the results of a January 8, 2016 meeting.
Plaintiff claims that despite the fact that he regularly talked and texted with defendant, he was unaware that on December 8, 2015, defendant had filed a chapter 7 voluntary no asset bankruptcy petition in the United States Bankruptcy Court for the Eastern District of New York. According to plaintiff, in January 2016, defendant informed him that he would have to wait until after March 8, 2016, but promised that "as soon as it's resolved, you [will] get it [i.e., the monies investment plus profits] back." Defendant did not notify plaintiff of his bankruptcy proceeding and did not list plaintiff as a creditor in his bankruptcy petition. Plaintiff states that, unbeknownst to him at the time, March 8, 2016 was the date of defendant's creditors' meeting pursuant to 11 USC § 341, as well as the deadline for defendant's creditors to object to a bankruptcy discharge. On March 10, 2016, defendant received a discharge in bankruptcy pursuant to 11 USC § 727. Plaintiff asserts that defendant, thereafter, again stated that he needed more time.
On May 2, 2016, defendant asked plaintiff to provide his calculations of the sum total owed on all three agreements, and defendant confirmed that plaintiff's calculation of the amount of $118,480 was correct. In the summer of 2016, after much delay, defendant sent plaintiff checks, issued by his wife, Rozza Matyas, for a total amount of $118,480, whichwere dated for October 1, 2016. Defendant claims that the reason that his wife issued these checks, instead of him, was because he did not have sufficient funds in his own account to pay plaintiff. However, on or about October 1, 2016, when plaintiff tried to cash one or more of the checks, they bounced, and plaintiff did not attempt to cash the remaining checks since there were insufficient funds in the account to cash them.
In February 2017, defendant advised plaintiff that he was purchasing a home in Toms River, New Jersey, and selling his house in Brooklyn, and promised to pay plaintiff at the closing. However, instead of paying plaintiff in full, defendant only provided $44,000 in partial payments, with one check issued on ,June 22, 2017 for $35,000 and another check issued on ,June 25, 2017 for $9,000.
On August 4, 2017, plaintiff filed the instant action against defendant. Plaintiff's complaint, as amended, sets forth 12 causes of action, consisting of a first cause of action for breach of contract, a second cause of action for an account stated, a third cause of action for unjust enrichment, a fourth cause of action for fraudulent inducement, a fifth cause of action for fraud, a sixth cause of action for breach of the duty of good faith and fair dealing, a seventh cause of action for breach of fiduciary duty, an eighth cause of action for conversion, a ninth cause of action for a violation of Debtor and Creditor Law § 273, a tenth cause of action for a violation of Debtor and Creditor Law § 274, an eleventh cause of action for a violation of Debtor and Creditor Law § 275, and a twelfth cause of action for a violation of Debtor and Creditor Law § 276. Defendant has interposed an answer, and discovery hasbeen completed, including the taking of the depositions of plaintiff and defendant. On February 20, 2019, plaintiff filed his note of issue. On April 19, 2019, plaintiff and defendant filed their instant motions.
Plaintiff, in support of his motion, asserts that defendant has admitted that he entered into the three agreements with him and that he owed him his investments plus the returns on his investments. Both plaintiff and defendant agree that the monies that defendant owed plaintiff under the Second Agreement and the Third Agreement were satisfied by defendant's $44,000 payment, and that only the monies owed under the First Agreement are in dispute. Specifically, plaintiff asserts, in his supporting affirmation, that he seeks only the sums owed under the First Agreement. Likewise, defendant testified, at his deposition, that the $44,000 was for the Second Agreement and the Third Agreement (defendant's deposition tr at 67).2 Defendant, however, owed a total of only $37,100 under the Second Agreement and the Third Agreement, and has paid plaintiff $44,000, which is $6,900 in excess of the amount owed under those agreements.
Defendant argues that he should be absolved from paying any amount owed to plaintiff under the First Agreement due to his discharge in bankruptcy. It is undisputed thatdefendant's debt to plaintiff was unscheduled and not disclosed on his bankruptcy petition. Defendant also does not deny that he continued to make promises that he would pay plaintiff, while surreptitiously filing for bankruptcy and obtaining his discharge in bankruptcy. Defendant nevertheless claims that his discharge in bankruptcy prevents plaintiff from pursuing his claim because it was a no asset bankruptcy case.
11 USC § 727 (b) governs discharges in chapter 7 bankruptcy liquidations. 11 USC § 727 (b) provides that "[e]xcept as provided in section 523 of this title, a discharge under . . . this section discharges the debtor from all debts that arose before the date of the order for relief under this chapter . . . ." 11 USC § 523, entitled "Exceptions to discharge," provides, in pertinent part, as follows:
To continue reading
Request your trial