Calendar Date: February 23, 2017
Lauterbach Law Firm, New City (Paul H. Schafhauser of Chiesa
Shahinian & Giantomasi, PC, New York City of counsel),
Newberg, Monticello, for respondent.
Before: Peters, P.J., McCarthy, Garry, Rose and Aarons, JJ.
MEMORANDUM AND ORDER
from a judgment of the Supreme Court (McGuire, J.), entered
October 30, 2015 in Sullivan County, upon a decision of the
court in favor of plaintiff.
2002, plaintiff met defendant through his accountant. The
parties initially maintained a business relationship, but it
eventually progressed into a friendship. At various times
since they first met, plaintiff would loan defendant money.
In November 2009, defendant signed a purported promissory
note in favor of plaintiff in the amount of $257, 000
reflecting the total sums of money loaned to defendant. In
January 2010, plaintiff loaned defendant an additional $50,
000. Plaintiff subsequently commenced this action alleging
that defendant failed to pay him back the monies loaned to
him. In his answer, defendant alleged two counterclaims. A
nonjury trial was held and, following the close of proof,
Supreme Court dismissed defendant's second counterclaim.
In an October 13, 2015 decision, Supreme Court found in favor
of plaintiff and awarded him $307, 000 and dismissed
defendant's first counterclaim. Judgment was subsequently
entered thereon and defendant appeals.  "[W]hen
reviewing a determination following a nonjury trial, we
independently review the weight of the evidence, while
according appropriate deference to the trial court's
credibility assessments" (CGM Constr., Inc. v
Sydor, 144 A.D.3d 1434, 1435 ; see Weinberger
v New York State Olympic Regional Dev. Auth., 133 A.D.3d
1006, 1007 ; Shattuck v Laing, 124 A.D.3d
1016, 1017 ). At trial, plaintiff testified that since
2002, he has loaned defendant money for various purposes.
Plaintiff initially loaned defendant "a small amount of
money" and defendant would always repay him. In 2007,
plaintiff loaned defendant $112, 000 because defendant
"was going through a difficult time in Israel."
Plaintiff subsequently loaned defendant additional sums of
money in order to help defendant, among other things,
purchase business franchises and to buy an apartment. In
November 2009, because the amount of money that had been
loaned through the years had become substantial, plaintiff
wanted "to be protected." Plaintiff's executive
assistant printed out a blank promissory note form from the
Internet, which defendant completed and signed. The amount of
$257, 000 was derived from plaintiff's records regarding
the sums of money previously loaned to defendant. Both
plaintiff and his executive assistant testified that
defendant promised to pay plaintiff back for the money lent
to him. Plaintiff also stated that defendant told him that
"within two years you will see your money."
Plaintiff testified that after the parties signed the note,
in January 2010, defendant called him stating that he was
"broke" and that he needed money for gas so that he
could attend a meeting for his next deal. Plaintiff wired
defendant $50, 000 and submitted documentary evidence
reflecting the wire transfer. Plaintiff testified that he has
not been paid back for either the $257, 000 as memorialized
in the note or the $50, 000 loan.
asserts that the note was unenforceable as a matter of law.
Although the note did not constitute a negotiable instrument,
it may still be enforceable under traditional principles of
contract law (see DH Cattle Holdings Co. v Reinoso,
176 A.D.2d 1057, 1058 ). As Supreme Court found, the
note "memorialize[d] a debt between the parties and by
signing same... defendant has acknowledged that debt and his
obligation to pay same." And, while the note stated that
the money was to be repaid at a time "[t]o be agreed
upon" by the parties, "[w]hen a contract does not
specify time of performance, the law implies a reasonable
time" (Savasta v 470 Newport Assoc., 82 N.Y.2d
763, 765 ); here, plaintiff testified that there was an
expectation that he would be repaid within two years.
extent that defendant disputed that he received any of the
money as testified to by plaintiff or characterized the money
given to him as duly earned business commissions, Supreme
Court, as the trier of fact, was best situated to assess the
witnesses' credibility (see Tomanelli v Lizda
Realty, 174 A.D.2d 889, 891 ). We conclude that
Supreme Court reasonably credited plaintiff's testimony
over that of defendant's and perceive no basis to disturb
the court's determination awarding $307, 000 to plaintiff
(see generally Dzek v Desco Vitroglaze of
Schenectady, 285 A.D.2d 926, 927 ). Furthermore,
while defendant relies on the statute of frauds with respect
to the $50, 000 loan, such argument was waived inasmuch as
defendant failed to plead the statute of frauds as an
affirmative defense in his answer (see Bourdeau Bros.,
Inc. v Bennett, 74 A.D.3d 1542, 1542 ).
Court also properly dismissed defendant's first
counterclaim alleging that plaintiff failed to pay him a
brokerage fee with the respect to the sale of one of
plaintiff's businesses . Defendant submitted a
copy of a blank listing agreement that he testified was
similar to the one that he entered into with plaintiff in
2002. Defendant, however, admitted that, according to the
express terms of such agreement, it expired 12 months after
it was signed and oral extensions were prohibited. Defendant
further stated that he did not have a written listing
agreement with plaintiff following the expiration of this
12-month period. Plaintiff testified that, in 2007, he sold
the inventory from one of his businesses to another company
and, although defendant attended some of the negotiations for
such sale, plaintiff stated that he was present in his
capacity as a friend. Plaintiff further stated that he did
not have any agreement to pay defendant a commission for this
inventory sale. In view of the foregoing and according
deference to Supreme Court's findings, the court's
determination that defendant was not entitled to brokerage
fees as alleged in the first counterclaim was supported by a
fair interpretation of the evidence (see generally Matter
of Roth v S & H Grossinger, 284 A.D.2d 746, 747
Supreme Court did not err in dismissing defendant's
second counterclaim alleging that plaintiff failed to share
profits pursuant to a partnership between them involving the
importation of certain products. Defendant did not submit any
proof demonstrating either that the parties agreed to share
profits or that they entered into any partnership agreement.
Because defendant did not satisfy his burden of proof, the
dismissal of the second counterclaim was proper (see
generally Feldin v Doty, 45 A.D.3d 1225, 1226 ).
Peters, P.J., McCarthy, Garry and Rose, JJ., concur.
that the judgment is ...