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Capital Construction Management of New York, LLC v. Yossi Zaga

June 14, 2012

CAPITAL CONSTRUCTION MANAGEMENT OF NEW YORK, LLC, PLAINTIFF,
v.
YOSSI ZAGA, DEFENDANT.



The opinion of the court was delivered by: P. Kevin Castel, District Judge:

MEMORANDUM AND ORDER

Plaintiff Capital Construction Management of New York, LLC ("Capital Construction") contends that defendant Yossi Zaga breached a loan agreement and defaulted on a related promissory note. Discovery is now closed, and plaintiff moves for summary judgment pursuant to Rule 56, Fed. R. Civ. P.

As discussed below, there is no dispute that the defendant executed the loan agreement and promissory note, and that he failed to make payments scheduled thereunder. In opposition, defendant argues that a jury should decide whether the agreements are enforceable. Based on the summary judgment record, however, defendant has not submitted evidence that would permit a reasonable jury to find in his favor. For reasons discussed, the plaintiff's motion for summary judgment is granted as to Count One and Count Two, but not as to Count Three.

BACKGROUND

The following facts are either undisputed or described in the light most favorable to defendant as the non-movant. See, e.g., Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011).

A. The Loan Agreement of November 20, 2007.

Plaintiff Capital Construction was the construction manager of a condominium development located at East 81st Street in New York City. (Oz Aff't ¶ 7; Def. Opp. Mem. at 2.) The development was sponsored by non-party East 81st Street LLC (the "LLC"). (Oz Aff't ¶ 6; Zaga Aff. ¶ 3.) Non-party East 81st Parent Holding LLC (the "Parent") was the LLC's sole member. (Oz Aff't Ex. C, at 1.) As described in a loan agreement (the "Loan Agreement"), three individuals were, in turn, members of the Parent: defendant Yossi Zaga, and non-parties Ben Zion Suky and Chaim Cohen. (Oz Aff't Ex. C, at 1.)

Under the terms of a construction contract, the LLC owed $1,170,000 to plaintiff Capital Construction. (Oz Aff't Ex. C, at 2.) On or about November 20, 2007, defendant Zaga, along with non-parties Suky and Cohen, executed a Loan Agreement with Capital Construction.*fn1

(Pl. 56.1 ¶ 1; Def. 56.1 Resp. ¶ 1; Oz. Aff't Ex. C.) The Loan Agreement converted a debt that the LLC owed to plaintiff Capital Construction into a loan from plaintiff Capital Construction to the three individual borrowers, including defendant Zaga. (Pl. 56.1 ¶ 5; Def. 56.1 Resp. ¶ 5.)

The Loan Agreement required the borrowers to make a first repayment of $670,000 by December 31, 2007, and a second repayment of $525,000 by June 1, 2008. (Pl. 56.1 ¶¶ 3-4; Def. 56.1 Resp. ¶¶ 3-4; Oz Aff't Ex. C; Zaga Aff. ¶ 8.) It is undisputed that the borrowers, including defendant Zaga, "failed to pay Capital [Construction] $670,000 on or before December 31, 2007." (Pl. 56.1 ¶ 7; Def. 56.1 Resp. ¶ 7.) The borrowers thereafter made the following repayments: $470,000 in January 2008; $3,000 in March 2008, and $9,000 in September 2008. (Pl. 56.1 ¶¶ 8-10; Def. 56.1 Resp. ¶¶ 8-10; Zaga Aff. ¶ 9.) As of June 1, 2008, $700,000 of the loan remained outstanding. (Pl. 56.1 ¶ 13; Def. 56.1 Resp. ¶ 13.) The borrowers have made no further repayment. (Pl. 56.1 ¶ 11; Def. 56.1 Resp. ¶ 11.)

Under sections 10(B) and 15 of the Loan Agreement, the three individual borrowers agreed to be liable, jointly and severally, for repayments on the loan. (Oz Aff't Ex. C §§ 10(B), 15.)

B. The Promissory Note of December 7, 2007.

Separately, on December 7, 2007, the three same borrowers, including defendant Zaga, executed a promissory note, whereby they "unconditionally promise[d]" to pay $1,170,000 to Capital Construction. (Oz Aff't Ex. D, at 1.) It is undisputed that the promissory note obligated defendant to personally repay the $1,170,000. (Pl. 56.1 ¶ 17; Def. 56.1 Resp. ¶ 17.) As with the Loan Agreement, the promissory note required full repayment by June 1, 2008, and to date, the borrowers have repaid only $482,000, leaving $688,000 unpaid. (Pl. 56.1 ¶¶ 18-20; Def. 56.1 Resp. ¶¶ 18-20.) The Promissory Note required the borrowers to pay the maximum lawful rate of ...


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