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Barbosa v. Jastrzab

June 11, 2010

ERNEST BARBOSA, PLAINTIFF,
v.
JULITA M. JASTRZAB, DEFENDANT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Currently before the Court is Plaintiff's renewed motion for entry of a default judgment against Defendant with respect to the September 2005 oral agreement between Plaintiff and Defendant. See Dkt. No. 10. In addition, in accordance with the Court's March 30, 2009 Memorandum-Decision and Order, Plaintiff has filed an affirmation and supporting documents setting forth the information necessary for the Court to determine the number of monthly payments on which Defendant had defaulted at the time that Plaintiff filed this action on August 11, 2008, under the terms of the September 4, 2006 promissory note and the September 27, 2006 promissory note, including the calculation of interest that had accrued on these overdue payments. See id.

II. BACKGROUND

Plaintiff filed this breach-of-contract action on August 11, 2008. See Dkt. No. 1. In his complaint, Plaintiff asserted three causes of action. In his first cause of action, Plaintiff claimed that "[t]here existed a valid and enforceable oral contract between . . . Plaintiff and . . . Defendant regarding . . . Plaintiff's loan to . . . Defendant of $25,000.00 in September of 2005." See Complaint at ¶ 16. Furthermore, Plaintiff claimed that he had tendered the $25,000.00 to Defendant as evidenced by a cancelled check, see id. at ¶ 17; that Defendant had breached the oral contract by failing to repay the amount she borrowed from him, see id. at ¶ 18; and that Defendant's breach of the oral contract had injured him in the amount of $25,000.00 plus the lawful rate of interest, see id. at ¶ 19.

In his second cause of action, Plaintiff alleged that a valid and enforceable written contract existed between him and Defendant as evidenced by the acknowledgment and promissory note dated September 4, 2006, see id. at ¶ 21; that he had actually loaned the sum of $100,000.00 to Defendant, see id. at ¶ 22; that Defendant had breached the written contract by failing to repay the amount to him, see id. at ¶ 23; and that Defendant's breach of the written contract had injured him in the amount of $100,000.00 plus interest at the rate of five percent per annum, see id. at ¶ 24.

Finally, in his third cause of action, Plaintiff alleged that a valid and enforceable written contract existed between him and Defendant as evidenced by the acknowledgment and promissory note dated September 27, 2006, see id. at ¶ 26; that he had actually loaned the sum of $37,000.00 to Defendant, see id. at ¶ 27; that Defendant had breached the written contract by failing to repay him the amount that she had borrowed, see id. at ¶ 28; and that Defendant's breach of the written contract had injured him in the amount of $37,000.00 plus interest at the rate of six percent per annum, see id. at (c).*fn1

On September 8, 2008, Plaintiff requested an entry of default, see Dkt. No. 5, which the Clerk of the Court entered on September 10, 2008, see Dkt. No. 6.*fn2 On September 11, 2008, Plaintiff filed a motion for entry of a default judgment. See Dkt. No. 7.

In a Memorandum-Decision and Order dated March 30, 2009, the Court granted in part and denied in part Plaintiff's motion. See Dkt. No. 9 at 8. Specifically, the Court denied Plaintiff's motion with respect to the September 2005 oral agreement because it was impossible for the Court to determine whether that agreement was void under New York's Statute of Frauds, see N.Y. Gen. Oblig. Law § 5-701(a)(1). See Dkt. No. 9 at 4-5. However, the Court granted Plaintiff leave to renew his motion for default judgment with respect to this agreement. See id. at 5.

With respect to the September 4, 2006 promissory note, the Court found that "[t]his promissory note appear[ed] to meet the requirements for a valid negotiable instrument: it [was] signed by Defendant, the maker; it contain[ed] an unconditional promise to pay a sum certain, $100,000.00; and it [was] payable at a definite time -- Defendant must begin making payments three months after she begins to practice medicine full time and she must continue to make monthly payments until she repays the total amount of the loan plus interest." See id. at 6. However, the Court noted that there was one problem -- "[t]he promissory note [did] not indicate the date on which Defendant began to practice medicine full time, if, in fact, she ha[d] . . . [and] [w]ithout this date, it [was] impossible for the Court to determine when Defendant's obligation to start making monthly payments began, if it ha[d]; and, therefore, the Court [could not] determine the total monthly payments, if any, for which she [was] in default." See id. at 6-7. The Court also concluded that, without this information, it could not "determine the amount of interest [Defendant] owe[d]." See id. at 7. As a result of these problems, the Court granted Plaintiff's motion for entry of a default judgment with regard to this promissory note on the issue of liability but denied the motion on the issue of damages. See id.

With regard to the September 27, 2006 promissory note, the Court concluded that it appeared "to meet the requirements for a valid negotiable instrument: it [was] signed by Defendant, the maker; it contain[ed] an unconditional promise to pay a sum certain, $37,000; and it [was] payable at a definite time -- monthly payments of $1,000 beginning on February 1, 2007, until Defendant pa[id] the loan in full." See id. However, the Court found that there was a problem -- "[a]lthough Plaintiff seeks a default judgment for the full amount of the loan plus interest, Defendant has not, as of the present time, defaulted on the total amount of the loan." See id. at 8. Due to this problem, the Court granted Plaintiff's motion for a default judgment with regard to this promissory note on the issue of liability but denied it on the issue of damages. See id.

In compliance with the Court's March 30, 2009 Memorandum-Decision and Order, Plaintiff filed an affirmation renewing his motion with respect to the September 2005 oral agreement and filed documentation regarding the issue of damages with respect to the September 4, 2006, and September 27, 2006 promissory notes. See Dkt. No. 10. In his affirmation, Plaintiff stated that, "[a]t the time of the Oral Agreement dated September 30, 2005 . . . and the Promissory Note dated September 4, 2006 . . . both [he] and the Defendant lived in Summerville, South Carolina . . . ." See Undated Affirmation of Dr. Ernest Barbosa at ¶ 2. He also claimed that, "[t]hereafter, the Defendant moved to Tulsa, Oklahoma and the proceeds from [sic] September 26, 2006 Promissory Note . . . were to be used by the Defendant to assist her in purchasing a home in Tulsa." See id. at ¶ 3. Plaintiff further asserted that "Defendant then moved to New York and . . . was licensed to practice medicine on or about June 15, 2007 . . . and [was] listed in a group practice with three (3) other Psychiatrists in the Glenn [sic] Falls Hospital." See id. at ¶ 4. Finally, Plaintiff contended that, "[u]pon information and belief, the Defendant began practicing medicine full time on the date she was so licensed . . . [and that] . . . Defendant ha[d] made no payments whatsoever on the three (3) loans that are the subject of this litigation." See id. at ¶ 5.

III. DISCUSSION

A. The September 2005 Oral Agreement -- ...


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