SUSAN C. WARNOCK, ESQ Attorney for Plaintiff 880 Third Avenue New York, New York 10022 212.750.3110 MICHAEL J. GOOD, ESQ. Attorney for Defendant 26 Court Street Brooklyn, New York 11242 718.852.4612
SUSAN C. WARNOCK, ESQ Attorney for Plaintiff 880 Third Avenue New York, New York 10022 212.750.3110 MICHAEL J. GOOD, ESQ. Attorney for Defendant 26 Court Street Brooklyn, New York 11242 718.852.4612 Sabrina B. Kraus, J.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff commenced this action by moving for summary judgment in lieu of complaint on a promissory note. The initial papers were filed on October 13, 2015, and the motion was returnable on November 23, 2015.
The promissory note (The Note), dated May 25, 2015, and annexed to the motion papers states that defendant agrees to pay back plaintiff $14,000.00 for loans made over the past year. The Note further stated that the payments would be periodic but would be paid in full by September 1, 2015, and that if any balance remained after said date interest would be applied at the rate of 4%.
Defendant does not dispute that he signed The Note.
Defendant appeared pro se on November 9, 2015 and filed an affidavit in opposition consisting of a single sentence "I do not owe Meixuan Wu any money whatsoever."
The court adjourned the motion to March 8, 2016, for defendant "to return with documents."
On February 23, 2016, defendant filed an additional affidavit in opposition stating that plaintiff had been his girlfriend and was worried her family would cut her off financially because she was spending too much money. Defendant stated plaintiff asked him to sign The Note so her father wouldn't cut her off. He stated the following day a new document (The Agreement) was created stating the loan was paid in full, and attached the purported document to his opposition papers.
The Agreement states:
I, Matthew Gessler, have fulfilled all debts/obligations to Meixuan Wu, for loans made over the course of The last year totaling $14,000 USD. This document shows balance for all loans is 0 and superceded any previous documents.
The motion was adjourned to May 12, 2016 for the submission of reply papers.
On May 11, 2016, plaintiff filed reply papers stating The Agreement was a forged document, that she never signed such a document. Plaintiff also attached an affidavit and report from Patricia Zippo (PZ) a forensic examiner who concluded that The Agreement was indeed a forged document.
The motion was submitted on May 12, 2016. Pursuant to a decision and order dated August10, 2016, the court (Sokoloff, J) denied the motion. The court held in pertinent part:
Plaintiff has established a prima facie case on her promissory note which Defendant has rebutted. Although the forensic examiner has made a persuasive presentation concluding that Plaintiff's signature on the second document is a product of manipulation, the analysis of an expert would seem to be more appropriate for proof at trial.
The court set the action down for a discovery conference on November 15, 2016. On November 15, 2016, counsel appeared for defendant and the action was transferred to the general calendar part.
On May 1, 2019, plaintiff filed a notice of trial. The action appeared on the Part 15 trial part on July 15, 2019. The trial was adjourned over the next five court dates to February 10, 2020.
On February 10, 2020, the action was assigned to this court for trial. The court held a bench trial and reserved decision.
FINDINGS OF FACT
At trial, three witnesses testified. The plaintiff, the defendant and PZ. A copy of The Note was submitted in evidence as was a copy of The Agreement. Also submitted was the report of PZ.
Plaintiff testified first. Plaintiff stated that she and the defendant were in a relationship. At the time, plaintiff was 21 years old and was attending school in New York City. Defendant was 37 years old. The parties met through an online dating site in 2014. The parties never lived together, but dated for approximately one year. Over this period, defendant requested plaintiff loan him money on several occasions. The first time was very early in their relationship. Defendant was only working intermittently and asked plaintiff for money to help pay for his expenses. The money was primarily given by plaintiff to defendant in cash. There were approximately 8 to 10 different loans. There were four occasions when plaintiff gave defendant $2000.00. Two occasions when she gave him $1000.00 each. There were also two occasions when she wired money directly from her account to his account.
While they were dating plaintiff paid for everything. Plaintiff paid for the couple to go on vacation, plaintiff paid when they went out to dinner. Defendant lived with his mother in Queens, so the parties spent most of their time together at plaintiff's apartment in the Financial District. The moneys that plaintiff paid for their activities are in addition to the amounts that were loaned.
By the spring of 2015, the relationship deteriorated. Defendant was suffering from drug addiction and became violent with plaintiff. Defendant was arrested as a result of a domestic violence incident between the parties. There were two incidents of domestic violence, the first was in February 2015, and the last was in April or May of 2015. Although plaintiff obtained an order of protection against defendant she gave him additional money for an attorney and to get out of jail.
In April 2015, the parties exchanged emails (Ex 6) where plaintiff was asking for the money to be paid and defendant stated he would pay her back when he started working.
On May 25, 2015, the parties were together and they drew up and signed The Note (Ex5). Defendant made no payments on the note. The parties stopped all communication by late August or early September 2015. Plaintiff retained counsel who sent defendant a demand letter, but no payment was made.
The court found plaintiff to be a credible witness.
Defendant testified. Defendant acknowledged receiving approximately $2000 in bank transfers from plaintiff. Defendant testified that he received approximately $1000 which was to pay for a car they had rented on vacation and the balance was for money he used while watching her dog while she was on vacation. He stated neither was a loan and the money from the second transfer was used to pay for dog food and dog walkers, although he was staying at plaintiff's apartment to care for the dog.
Defendant denied borrowing any money from plaintiff and testified that he was making $150,000 a year at the interim jobs he worked at and that he was paid an average of $100 per hour for 40 to 50 hour weeks.
Defendant did not address the allegations of addiction and domestic violence in his testimony.
Defendant testified that the day after he signed The Note, he asked plaintiff to sign The Agreement and that he gave the original of The Agreement to plaintiff to keep. Defendant denied that plaintiff paid for everything, but acknowledged he was thrifty and stated if plaintiff wanted to go somewhere "high end" she would pick up the tab.
The court did not find defendant to be a credible witness.
PZ also testified on plaintiff's rebuttal case. PZ is a forensic document examiner and a retired police officer. PZ has 16 years experience in document analysis and a BA in forensic science, and was qualified to give her expert opinion at trial.
Defense counsel first stated that he was going to call PZ as a witness. Then he changed his mind and when plaintiff called he objected to PZ being allowed to testify. The court allowed the testimony over defendant's objection. --------
PZ based her analysis on an examination of the original Note, as well as independent samples of plaintiff's signature. PZ testified that the signature of plaintiff on The Agreement was not authentic and that in fact the signature was a cut and paste manipulation of the signature on The Note. PZ testified that there was absolutely no variation between the two signatures, and that no person can write exactly the same way twice.
The court found PZ to be a credible witness and gives weight to her opinion. DISCUSSION
The record at trial was scant. Very little documentation was offered by either party. The primary factor in the court's determination is thus credibility. The court found plaintiff and PZ credible and the court found defendant's testimony to be lacking in credibility.
Based on the foregoing, the court finds that Plaintiff is entitled to a judgment in the amount of $14,000.00 plus interest at the rate of 4% from September 1, 2015.
The clerk is directed to enter judgment in said amount.
This constitutes the decision and order of the court. Dated: New York, New York February 11, 2020
__________Hon. Sabrina B. Kraus JCC