- STATE OF NEW YORK E. SEGA L. Plaintiff(s),

Size: px

Start display at page:

Download "- STATE OF NEW YORK E. SEGA L. Plaintiff(s),"

Shon Beasley
5 years ago
Views:

1 SHORT FORM ORDER SUPREME COURT Present: HON. MARVIN - STATE OF NEW YORK E. SEGA L Justice SHORT FORM ORDER IAS PART 8 GREGORY VOLKOV, NASSAU COUNTY INDEX No. 4854/00 MOTION DATE: 8/21/00 MOTION No. 01,02 -against- Plaintiff(s), JOHANSEN CONSTRUCTION CORPORATION and MARK JOHANSEN, Individually, Defendant(s). Upon the following papers read on this motion for an order pursuant to CPLR 3213 granting the plaintiff summary judgment against the defendants in the sum of $39, together with interest from August 27, 1996; and onthis cross motion by the defendant Mark Johansen for an order dismissing the complaint as against him, with costs and disbursements; Notice of Motion/ Order to Show Cause... X Notice of Cross Motion... X Answer... X Reply... X Memorandum.of Law... X it is ORDERED, that these motions are decided as follows: The document in dispute, dated August 26, 1996, authored by the plaintiff, is entitled "Johansen Construction Corporation, Out of Pocket Expenses", and is addressed to Johansen Construction Corporation, attention Mr. Mark Johansen, President. The document

2 lists charges for services rendered by plaintiff, and goods delivered by plaintiff to Johansen Construction Corporation during the period January 23, 1995 through June 28, The document demands payment for services for 2808 hours of labor in the sum of $42,120.00, reimbursement for car expenses of $ , and seeks reimbursement for goods such as lumber and hardware purchased for the corporation by plaintiff on plaintiff's credit cards in the sum of $43, The total bill of goods and labor of $88, is reduced by payments totaling $32,199.83, leaving $17, of unpaid First USA credit card bills and $39, in other outstanding charges. The following words appear at the bottom of the document: I, Mark Johansen, President of Johansen Construction Corp., agree with the mentioned above bill and will repay money owed to Gregory Volkov in 24 monthly installments beginning in August 26, Underneath these words is a line which bears the hand written signature "Mark Johansen". The words "Mark Johansen, President" are typed below the signature line.. The plaintiff has commenced an action pursuant to CPLR 3213 by the filing of a Summons and Motion for summary judgment in lieu of Complaint. The plaintiff contends that the defendants paid the First USA credit card debt in the sum of $17, and that 2

3 the plaintiff is entitled to summary judgment against the defendants on the August 26, 1996 document in the sum of $39, with interest from August 26, The defendants oppose the plaintiff's motion on the grounds that 1) plaintiff fraudulently induced the execution of the promissory note by misrepresenting the number of hours of labor provided by the plaintiff and 2) the plaintiff was paid in full for all sums due pursuant to a subsequent agreement between the parties whereby the defendants rendered services to the plaintiff to assist him in the construction of plaintiff's home. The defendants have also presented a document which they contend evidences payment of plaintiff's credit card bills in the sum of. $20, from September 6, 1996 through February 25, In addition, the defendant Mark Johansen moves for judgment dismissing the complaint as against him on the ground that the promissory note in issue was signed by him in his representative capacity as President of the Corporation and does not bind him personally. Both sides agree that the document in issue is a promissory note which is a negotiable instrument within the definition of UCC 3-104(2)(d). The document is governed by UCC (2) which provides: An authorized representative who signs his own name to an instrument (a) is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity; (b) except as otherwise established between the immediate parties, is personally 3

4 obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity..." The representative capacity of the signer is clearest where a document is signed: "Johansen Construction Corporation by Mark Johansen, President". Any other unambiguous indication would also have been sufficient to demonstrate representative capacity, for.example: "Johansen Construction Corporation will repay...", signed by Mark Johansen, President. (See, Official Comment, reprinted in McKinney's Cons. Laws of N.Y., Book 62%, 3-403). Absent such unambiguous language, where a principal's name appears somewhere on an instrument, but it is not clear that the signer signed in a representative capacity, parol evidence may be admissible to establish that the parties understood that the note had been signed in a representative capacity only. (See, Rotuba Extruders, Inc. v. Cenoos, 46 NY2d 223; Arde Anoarel, Inc. V. Matisse Ltd. 240 AD2d 328; Dollar Drv Dock Bank v. Alexander,, 197 AD2d 662; Trooical Ornamentals, Inc. v. Visconti, 115 AD2d 537; Star Dairv, Inc. v. Roberts, 37 AD2d 1038). Here, the defendant Mark Johansen's signature does appear above the typewritten words "Mark Johansen, President", and the name of the corporation does appear on the document as the accounting is addressed to the corporation. Nevertheless, the instrument clearly and unequivocally states that Mark Johansen will repay money to Gregory Volkov, to wit I, Mark Johansen, President of Johansen Construction Corp will repay money owed to Gregory

5 Volkov.... The Construction Corp." Johansen, and does signing the promise "The basic law is that resort to extrinsic impermissible when the face of the instrument itself,does to put its holder on notice of the (Rotuba Extruders, Inc. v. Ceppos, admissible to vary or contradict use of the words "President of Johansen functions only to identify and describe Mark not serve to denote that Mark Johansen is to repay in his representative capacity.. limited liability of proof is not serve a signeru supra). Parol evidence is not the terms of an unambiguous written instrument (see, Citibank, N.A. v. Plapinqer, 66 NY2d 90; Marine Midland Bank-Southern v. Thurlow, 53 NY2d 381; Leumi Finance Corp. v. Richter, 17 NY2d 166, 173; Struble v. Chaoman, 222 AD2d 856). Further, although the defendant Mark Johansen has submitted two affidavits he has made no evidentiary showing that the plaintiff knew or should have known that Mr. Johansen signed the note only in a representative capacity. In one affidavit, Mr. Johansen, states that he doesn't recall signing the note. In the later affidavit he merely states that it was never his intention to be personally obligated to repay any sums to the plaintiff. Even if the court found the note to be ambiguous, the only parol evidence permissible to support Mr. Johansen's claim that he signed only in a representative capacity is proof of the parties mutual intent and understanding (see, Rotuba Extruders Inc. v. Cepnos, supra). The defendant Mark Johansen has not offered any proof of the parties mutual intent and understanding. 5

6 Accordingly, the cross motion of the defendant' Mark Johansen is denied. This finding, however, requires a determination that the corporate defendant did not execute the subject promissory note. Accordingly, while the plaintiff may have meritorious claims against the corporate defendant, absent the execution of a promissory note by the corporate defendant, the plaintiff may not proceed against the corporate defendant pursuant to CPLR The defendants also contend that the plaintiff is not entitled to relief pursuant to CPLR 3213 on the ground that the defendants have raised viable defenses of fraudulent inducement and payment in full. The court finds that the defense of fraud in the inducement is devoid of merit. Said defense, based on non-specific hearsay statements of unidentified employees of the defendant corporation is conclusory and is totally unsupported by competent evidence. (See, A. Bella Food Corp. v. Luisi's Italian Deli, Inc., 243 AD2a 592; Bennell Hanover Assocs. v. Neilson, 215 AD2d 710). Further, as the defendants clearly had the ability to ascertain the accuracy of the charges before signing the promissory note, the defendants' inability to demonstrate reasonable reliance precludes defendants' defense of fraud in the inducement (see, Rudnick v. Glendale Systems, Inc., 222 AD2d 577; Inc. v. Liberatore, 138 AD2d 559). Dunkin Donuts of America, With regard to the defense of payment, the defendants claim that the corporation made credit card payments of $3, not credited by the plaintiff, and that the defendants fully 6

7 performed certain services for the plaintiff pursuant to an oral modification of the promissory note (see, Rose v. Soa Realty Assocs., 42 NY2d 338, ). The plaintiff concedes that he agreed to accept services from the defendants in payment of.the subject indebtedness but denies that defendants ever rendered services. The affidavit sworn to by Mark Johansen dated August 16, 2000 states that Mr. Johansen reviewed blueprints, created material lists and attended meetings with sub-contractors. His affidavit sworn to on June 21, 2000 states that the corporation also permitted plaintiff to use its office space when working on the renovation project for plaintiff's home, to enable the plaintiff to obtain discounts on materials. In his affidavit, sworn to on July 20, 2000, plaintiff uncategorically states that the defendants never reviewed blueprints, created material lists or met with subcontractors on plaintiff's behalf. The plaintiff herein demonstrated entitlement to summary judgment by proof of the promissory note and the default in payment (see, Seaman-Andwall Corp. v. Wright Mach. Core., 31 AD2d 136, affirmed 29 NY2d 617). It then became incumbent upon the defendants to come forward with proof of evidentiary facts showing the existence of a triable issue with respect to a bonafide defense (see, Gateway State Bank v. Shanqri-La Private Club for Women, 113 AD2d 791, affirmed 67 NY2d 627). The court finds that the defendants' vague assertions that they provided services in payment of the obligation set forth in the promissory note are totally devoid of evidentiary detail as to identities of subcontractors, 7

8 as well as to the dates, times, places and nature of services allegedly rendered; and that the defendants have failed to present sufficient competent evidence of payment to defeat plaintiff's prima facie showing of entitlement to summary judgment against the defendant Mark Johansen. With regard to the defendants' contention that the corporation paid $3, on plaintiff's First USA credit card charges, the plaintiff has not disputed this claim except to state that plaintiff acknowledges that all credit card charges were paid, Accordingly, the plaintiff is awarded judgment against the defendant Mark Johansen in the sum of $35, with interest thereon from August 27, 1996, together with costs and disbursements of the action. The motion for summary judgment in lieu of complaint is denied as against Johansen Construction Corporation without prejudice to the plaintiff's right to seek relief against said defendant by means of a plenary action. DATED: September 6, 2000 Volkov.sfo 8

Cltlbank, N.A. v Ferrara 2010 NY Slip Op 31851(U) June 24, 2010 Supreme Court, New York County Docket Number: /09 Judge: Joan A.

Cltlbank, N.A. v Ferrara 2010 NY Slip Op 31851(U) June 24, 2010 Supreme Court, New York County Docket Number: 108920/09 Judge: Joan A. Madden Republished from New York State Unified Court System's E-Courts