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Steve Lau v. Leonard Mezei

September 29, 2011


The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.:



On June 22, 2010, Steve Lau commenced an action against Harold Zoref, Leonard Mezei, and Mezei's companies, Northern Funding ("NF") and Northern Healthcare Funding ("NHF"). (Dkt. No. 1.) The Complaint alleges violations of federal securities laws, fraud, fraudulent inducement, negligent misrepresentation, conversion, and breach of contract. On February 7, 2011, Lau moved for partial summary judgment on his breach of contract claim against Defendants NF and NHF. (Dkt. No. 22.)


Zoref has worked as Lau's accountant since 2006. (Compl. ¶¶ 6.) In 2008, Zoref referred Lau to Mezei, who was seeking investors to provide financing for his companies, including NF and NHF. (Id. ¶¶ 13-14.) Lau invested his retirement funds with NF and NHF. (Id. ¶ 23.)

On April 7, 2008, Lau loaned NF $150,000 in exchange for a promissory note (the "NF Note"). (Pl.'s Rule 56.1 Statement ("Pl.'s 56.1") ¶ 6; Defs.' Rule 56.1 Statement ("Defs.' 56.1") ¶ 6.) Pursuant to the NF Note, NF agreed to pay Lau the $150,000 principal plus an annual interest rate of 8.5 percent. (Pl.'s 56.1 ¶ 6; Defs.' 56.1 ¶ 6.) Interest payments were to be paid monthly from May 1, 2008 through April 1, 2009. (Pl.'s 56.1 ¶ 9; Defs.' 56.1 ¶ 9.) Any unpaid principal and accrued interest would be payable by NF to Lau on April 7, 2009. (Pl.'s 56.1 ¶ 10; Defs.' 56.1 ¶ 10.) NF did not pay Lau any of the principal or accrued interest due under the Note on April 7, 2009. (Pl.'s 56.1 ¶ 14; Defs.' 56.1 ¶ 14.)

From April through July of 2008, Lau loaned NHF a total of $330,000. (Pl.'s 56.1 ¶¶ 16-18; Defs.' 56.1 ¶¶ 16-18.) On September 1, 2008, NHF issued a term promissory note (the "NHF Note") to Lau in the amount of $336, 973.74 (the amount of Lau's loans to NHF plus accrued interest). (Pl.'s 56.1 ¶¶ 19-20; Defs.' 56.1 ¶¶ 19-20.) Under the terms of the NHF Note, NHF would pay Lau the principal amount of $336,973.74 plus an annual interest rate of 13 percent; pay interest to Lau on the first of every month from September 1, 2008 until the Note expired on September 1, 2011; and pay Lau any unpaid principal on the expiration date. (Pl.'s 56.1 ¶¶ 22-24; Defs.' 56.1 ¶¶ 22-24.) The NHF Note provides that its terms may not be modified or discharged orally. (Pl.'s 56.1 ¶ 25; Defs.' 56.1 ¶ 25.) NHF has not made any interest payments to Lau since June 4, 2010, despite Lau's demands for the amounts due. (Pl.'s 56.1 ¶¶ 28, 32; Defs.' 56.1 ¶¶ 28, 32.)


Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A fact is material if it might affect the outcome of the suit under the governing law." Fincher v. Depository Trust & Clearing Corp.,604 F.3d 712, 720 (2d Cir. 2010). The moving party must show the absence of a genuine issue of material fact. Zalaski v. City of Bridgeport Police Dep't, 613 F.3d 336, 340 (2d Cir. 2010). To defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact by showing more than "some metaphysical doubt as to the material facts," and by presenting more than mere "conclusory allegations or unsubstantiated speculation." Brown v. Eli Lilly & Co., -- F.3d -- , 10 Civ. 512, 2011 WL 3625105, at *10 (2d Cir. Aug. 18, 2011) (internal citations omitted).

In deciding a motion for summary judgment, a court must "construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Brod v. Omya, Inc.,-- F.3d --, No. 09 Civ. 4551, 2011 WL 2750916, at *7 (2d Cir. July 18, 2011). However, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)) (emphasis omitted). "The role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried." Brod, 2011 WL 2750916, at *7.


A. Applicable Law

Defendants NF and NHF each issued Lau one promissory note. Both notes explicitly state that they will be governed by and interpreted in accordance with New York law. (Pl.'s 56.1 ¶¶ 11, 26; Defs.' 56.1 ¶¶ 11, 26.) A promissory note is "an unconditional written promise, signed by the maker, to pay absolutely and in any event a certain sum of money either to, or to the order of, the bearer or a designated person." Black's Law Dictionary (9th ed. 2009). As a written contract for the payment of money, promissory notes are governed by the common law of contracts. Imaginative Research Associates, Inc. v. Ramirez, 718 F. Supp. 2d 236, 257 (D. Conn. 2010).

Summary judgment is appropriate in an action on a promissory note "if there is no material question concerning execution and default of the note." United States v. Galarza, 2011 WL 256536, at *1 (E.D.N.Y. Jan. 26, 2011). "To establish a prima facie case of default on a promissory note under New York law, [a plaintiff] must provide proof of the valid note and of defendant's failure, despite proper demand, to make payment." Lehman Bros. Holdings Inc. v. Walji, 2011 WL 1842838, at *3 (S.D.N.Y. May 11, 2011). See also Arrowood Indem. Co. v. Gibson & ...

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