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Speare v. Johnson

Civil Court of the City of New York, Bronx County

January 3, 2014

Duette Speare, Plaintiff,
v.
Nadia D Johnson, Defendant.

Unpublished Opinion

Plaintiff- Duette Speare

Defendant- No Appearance

Hon. Eddie J. McShan, Judge, Civil Court

After an inquest being held in this matter on November 4, 2013, this court hereby finds and decides that:

Plaintiff, Duette Speare, failed to present sufficient proof that she is entitled to recover from the defendant, Nadia D Johnson, the sums sought in the complaint. Plaintiff presented uncontested testimony that the parties are "partners" with 15 other people in a "partnership". She indicated that she is the "banker" for the partnership. She stated that each partner contributes $200 per week to the partnership, and each partner receives the entire savings collected during the rotation. Plaintiff asserted on this record that the defendant failed to pay her $200 contribution to the partnership for the week of March 9, 2013. She also asserted that the defendant collected $100 from one of the partners and never turned the money over to her as the banker. Plaintiff stated that she made several demands for the monies and that the defendant refuses to pay.

The "partnership" the plaintiff described has many names depending on a variety of cultures and is commonly known as a susu, or sou-sou. The "partnership" is a system of group savings in a rotating savings club that consists of participants who pay a coordinator (the banker or treasurer) a specific amount at regularly scheduled intervals. Diggs, COIB Case No. 2010-335, 17 City L. 85 (December 15, 2010); CITYLAW, Advisory Opinion No. 2004-2, COIB, November 22, 2004. The coordinator then disburses the entire amount collected to one participant. A different participant receives the entire amount each time until every participant has received a disbursement and then a new cycle may begin. CITYLAW, Advisory Opinion No. 2004-2, COIB, November 22, 2004. The sou-sou or "partnership" is a group of people, usually family and friends, who come together and make regular weekly, biweekly or monthly monetary contributions to a common fund, which is disbursed as a lump sum to one partner on a certain date. Interest is not paid on the monies collected during the rotations and each partner/member will eventually receive from the rotating savings club the amount he or she contributed. Sasha Abramsky, New Yorkers & Co.; Newcomers Savings and Load, The New York Times, October 22, 2000. Neither of the "partners" gain or loses more than he or she puts in if run correctly. Id.; Heather Appel, Ethnic Savings Clubs Just the Ticket, When banks or credit cards won't do, HERALDNEWS, July 17, 2008.

The "partnership" only works if each "partner" makes their scheduled payments and it is the "banker's" responsibility to make sure each person makes the periodic payments. Posting of Edirin Oputu, In Savings Pools, Every Little Bit Helps, http://globalcitynyc.com/2012/12/06/in-savings-pools-every-little-bit-helps/ (December 6, 2012). The "banker" is expected to reimburse the "partnership" for any losses out of her own pocket. Id.; Maria Hall, Sou-Sou': Black Immigrants Bring Savings Club Stateside, The Grio, MSNBC, May 20, 2011, http://thegrio.com/2011/05/11/sou-sou-black-immigrantspbring-savings-club-stateside/. Some suggest that there is no legal penalty if a "partner" fails to make regular contributions, and only face sanctions by the way of ostracism from the community. Sasha Abramsky, New Yorkers & Co.; Newcomers Savings and Load, The New York Times, October 22, 2000. A spokesman for the Attorney General's Office for the State of New Jersey indicated that there is no rule prohibiting the practice, but noted that there is little protection in the event that someone is taken advantage of. Heather Appel, Ethnic Savings Clubs Just the Ticket, When banks or credit cards won't do, HERALDNEWS, July 17, 2008.

In the instant matter, plaintiff seeks to recover damages for the defendant's breach of the "partnership" agreement. This court found very little authority on whether a "partner" in the "partnership" described above has a legal remedy against a "partner" that fails to perform as agreed. This court finds that the plaintiff does have standing to pursue this claim as the "banker" of the "partnership" because she may be responsible for paying the defendant's share that was not paid to the "partnership" or savings club. Maria Hall, Sou-Sou': Black Immigrants Bring Savings Club Stateside, The Grio, MSNBC, May 20, 2011, http://thegrio.com/2011/05/11/sou-sou-black-immigrantspbring-savings-club-stateside/. The court also finds that the plaintiff has an interest in this matter that the law will recognize as a sufficient predicate for determining the issue at her request. See for example Caprer v Nussbaum, 36 A.D.3d 176 (2d Dept 2006).

The plaintiff's testimony established that parties entered into an agreement for the informal rotating savings club that required the defendant to pay $200 per week to the plaintiff as the "banker". Each contributing "partner", including the defendant, would receive the benefit of a lump-sum payment at some time during the rotation. There is nothing on this record to suggest that the defendant did not have the legal capacity to contract, and plaintiff's uncontested testimony established the parties' mutual assent to the terms of the contract as well as the consideration of the plaintiff regularly collecting the payments from each "partner", each "partner's" obligation to make the weekly payments, and each "partner's" entitlement to receive a lump sum payment at a future date. Plaintiff's uncontested testimony established all of the essential elements necessary for a binding contract between the parties. See for example Kowalchuk v Stroup, 61 A.D.3d 118 (1st Dept 2009).

Nevertheless, the court finds on this record that plaintiff failed to establish that she is entitled to a legal remedy. To establish a breach of an agreement, the plaintiff must demonstrate the formation of a contract with the defendant, performance by the plaintiff, the defendant's failure to perform, which resulted in damages. See for example Furia v Furia, 116 A.D.2d 694 (2d Dept 1986); Elisa Dreier Reporting Corp. v Global Naps Network, Inc., 84 A.D.3d 122 (2d Dept 2011). As noted herein above, the plaintiff established the formation of the contract with the defendant. Plaintiff also established that she collected the monies from the "partners" as agreed and that the defendant failed to perform for the week of March 9, 2013. However, plaintiff failed to establish that as the "banker", she actually paid the defendant's "hand" of $200 and an additional $100 as part of the other's "partner's" "hand" collected by the defendant. The plaintiff failed to prove that defendant's failure to perform resulted in actual damage to the plaintiff. Moreover, the plaintiff did not establish that the defendant took from the "partnership" more than she put in. As noted herein above, each member of the "partnership" will receive the exact amount that he or she contributed. The plaintiff did not provide any testimony or other evidence to indicate that the defendant received her "hand" and received more than she contributed. Accordingly, it appears on this record that the only sanction the defendant face is ostracism from the other "partners" and the sou sou community.

In light of the court's findings hereinabove, it is hereby:

ORDERED AND ADJUDGED that the plaintiff failed to establish her cause of action for breach of an agreement. Accordingly, the Clerk shall dismiss this matter in its entirety.


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