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Cohan v. Movtady

November 1, 2010


The opinion of the court was delivered by: Seybert, District Judge


On June 20, 2009, Perry Cohan and Rezvan Lahiji commenced this action against Mordechay Movtady alleging that Mr. Movtady defaulted on a promissory note and two additional loans from 2007 and 2008. Mr. Cohan and Ms. Lahiji have now moved for summary judgment. For the reasons set forth below, the motion is GRANTED IN PART AND DENIED IN PART.


On or about January 1, 2007, Mr. Movtady made, executed, and delivered a Promissory Note in the principal amount of $3,335,000 ("First Loan"), which represented the cumulative amount that Plaintiff[s] loaned Mr. Movtady between 1987 and the date of the Promissory Note.*fn1 (Def. 56.1 Stmt. ¶¶ 1-2.) Under the terms of the Promissory Note, Mr. Movtady agreed to make interest payments of $25,195 per month through December 30, 2007 and $28,000 per month beginning on January 1, 2008 until the principal balance was repaid. (Def. Decl. Ex. B; Def. 56.1 Stmt. ¶ 4.) The balance of the loan, including all outstanding interest, was due on or before December 30, 2008. (Def. Decl. Ex. B.) In the event of default, the Promissory Note provided for Mr. Movtady's payment of reasonable attorneys' fees and a 1.5% late payment fee. (Def. 56.1 Stmt. ¶ 5.) Mr. Movtady stopped making monthly interest payments after May 2009, and has not paid any portion of the $3,335,000 due as principal. (Def. 56.1 Stmt. ¶¶ 6-7.)

In March 2007, Mr. Cohan delivered four separate checks to Mr. Movtady totaling $1,350,000 ("Second Loan"), which Mr. Movtady agreed to repay by December 31, 2007*fn2 with monthly interest payments at a rate of 11% per annum. (Def. 56.1 Stmt. ¶¶ 8-10, 12-14, 16-18, 20-22, 24-25.) Although Mr. Movtady later delivered to Plaintiff Cohan an undated check for $1,500,000 on which he wrote "Return of Loan 4/1/07," the check was never deposited or cashed due to insufficient funds in Mr. Movtady's account. (Def. 56.1 Stmt. ¶¶ 28-29; Pl. Ex. 4 at ¶ 11.)

On October 24, 2008, Mr. Movtady received a $200,000 interest-free loan from Plaintiff Cohan ("Third Loan"), which he agreed to repay by December 1, 2008. (Def. 56.1 Stmt. ¶¶ 30-33.) On December 1, 2008, Mr. Movtady delivered to Mr. Cohan a check for $200,000 on which he wrote "Return of Loan Oct. 25, 2008" that also was never deposited or cashed. (Def. 56.1 Stmt. ¶¶ 35-36; Pl. Ex. 4 at ¶ 12.)

Plaintiffs claim that all three loans went into default on their respective maturity dates, and they commenced this action on June 20, 2009 for the unpaid principal, interest, and attorneys' fees in the amount of $5,832,444.79.

Mr. Movtady does not dispute that he has not repaid any of the principal on the Promissory Note, Second Loan, or Third Loan. (Def. 56.1 Stmt. ¶¶ 6, 11, 15, 19, 23, 37.) But Mr. Movtady asserts: (1) that the statute of limitations for recovery of the First Loan has expired, (2) that the Promissory Note is invalid and unenforceable, (3) that none of the loans are in default because the parties orally agreed to extend the maturity dates; and (4) that the Second Loan had no maturity date at all. In addition, Mr. Movtady argues that Ms. Lahiji does not have standing to bring suit because she is a citizen and resident of Iran.


I. Standard of Review

"Summary judgment is appropriate where there are no genuine disputes concerning any material facts, and where the moving party is entitled to judgment as a matter of law." Harvis Trien & Beck, P.C. v. Fed. Home Loan Mortgage Corp. (In re Blackwood Assocs., L.P.), 153 F.3d 61, 67 (2d Cir. 1998) (citing Fed. R. Civ. P. 56(c)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986).

"The burden of showing the absence of any genuine dispute as to a material fact rests on the party seeking summary judgment." McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997). "In assessing the record to determine whether there is a genuine issue to be tried as to any material fact, the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." McLee, 109 F.3d at 134.

"Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact, once such a showing is made, the non-movant must 'set forth specific facts showing that there is a genuine issue for trial.'"

Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (internal quotations and citations omitted). "Mere conclusory allegations or denials will not suffice." William v. Smith, 781 F.2d 319, 323 (2d Cir. 1986).

In an action on a promissory note, summary judgment is appropriate if there is "'no material question concerning execution and default' of the note." Merrill Lynch Commercial Fin. Corp. v. All State Envelopes Ltd., No. 09-CV-0785, 2010 WL 1177451, at *2 (E.D.N.Y. Mar. 24, 2010) (internal citations and quotations omitted).

This Court will address the merits of each of Mr. ...

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