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Peracchio v. National Sports Academy

United States District Court, N.D. New York

May 2, 2014

JOHN PERACCHIO, Plaintiff,
v.
NATIONAL SPORTS ACADEMY, Defendant.

BRIGGS NORFOLK LLP, MATTHEW D. NORFOLK, ESQ., RONALD J. BRIGGS, ESQ., Lake Placid, New York, Attorneys for Plaintiff.

MARINO PARTNERS LLP, UMAR A. SHEIKH, ESQ., White Plains, New York, Attorneys for Defendant.

MEMORANDUM-DECISION AND ORDER

MAE A. D'AGOSTINO, District Judge.

I. INTRODUCTION

On January 2, 2013, Defendant National Sports Academy ("NSA") removed this action to this Court asserting jurisdiction pursuant to 28 U.S.C. §§ 1331, 1441 and 1446. See Dkt. No. 1 at 1-4. Presently before the Court is Plaintiff's motion to remand the action to state court and for attorneys' fees and costs. See Dkt. No. 5 at 1-2. Defendant has opposed the motion to remand and has filed a cross-motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 14 at 1-2.

II. BACKGROUND

On November 13, 2013, Plaintiff commenced an action in New York State Supreme Court, Essex County with the filing of a Notice of Motion for Summary Judgment in Lieu of Complaint. See Dkt. No. 5-2 at 6. Plaintiff sought to recover the sum of $105, 000, with interest, allegedly owed to Plaintiff based on a promissory note issued by Defendant NSA on January 15, 2013. See id. at 9.

Defendant NSA is a not-for-profit corporation duly organized and existing under the laws of the State of New York. See Dkt. No. 9 at ¶ 5. Defendant's principal place of business is in Lake Placid, New York. See id. at ¶ 7. In January of 2013, Plaintiff was appointed to the NSA's Board of Trustees and shortly thereafter loaned Defendant NSA $105, 000. See id. at ¶¶ 11-12. In exchange for the loan, Defendant issued a promissory note to Plaintiff for the amount loaned. See id. at ¶ 8. The promissory note stated that Defendant "promises to pay to the order of [Plaintiff]... the principal sum of One Hundred Five Thousand Dollars... on January 14, 2015, unless prepaid or accelerated sooner." See id. at 6. In regard to acceleration, the note states:

At the election of the holder of this Note, all payments due hereunder may be accelerated, and this Note shall become immediately due and payable without notice or demand, upon the occurrence of an Event of Default (defined below) which default, except as otherwise provide [sic] below, is not cured within sixty (60) days from the occurrence of such Event of Default.
For purposes of this Note, "Events of Default" shall mean the occurrence of any of the following:
(a) Lender ceases to be a trustee or is no longer on the board of trustees of Borrower[.]

See id. at 6-7.

The note also states in pertinent part:

This note shall be construed without any regard to any presumption or rule requiring construction against the party causing such instrument ...

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