Opinion
29705/09
02-16-2012
Anna Stavrides, Plaintiff(s) v. Nicos Dimitriou, Defendant(s)
Cartier, Bernstein, Auerbach & Dazzo PC by George Dazzo, Esq Attorneys for Plaintiff Jeffrey Waller, Esq Attorney for Defendant
Cartier, Bernstein, Auerbach & Dazzo PC by George Dazzo, Esq Attorneys for Plaintiff
Jeffrey Waller, Esq Attorney for Defendant
Andrew G. Tarantino, J. PROCEDURAL HISTORY
Plaintiff commenced this action by summons and complaint dated July 28, 2009. Plaintiff claimed that Defendant failed to repay a $23,000.00 note for money loaned to Defendant by Plaintiff. Defendant's answer denied the allegations, and stated the affirmative defenses of Statute of Frauds, Statute of Limitations, payment, and estoppel. The action was transferred to this Court, pursuant to NY Civ Pract Laws & Rules 325(d). A trial without jury was conducted whereat the only witnesses were the Plaintiff and Defendant. The Court issued its determination from the Bench, and now issues this written decision.
TESTIMONY
Plaintiff knew the Defendant for more than thirty years. In 1985 Plaintiff loaned Defendant $6,800.00. The parties stipulated into evidence a photocopy of a document signed by Defendant which promised to pay the $6,800.00 by January 1986, while accruing 10% interest. The January 1986 date was at some point crossed out, which the Plaintiff could not explain. Plaintiff said that Defendant was supposed to pay her the interest every six months, and that he did. Plaintiff said that Defendant paid her $800.00 every six months "as interest" but that the principle was never repaid. In 1989, Plaintiff loaned additional money to the Defendant. The parties stipulated into evidence a second document signed by Defendant which promised to repay $23,000.00 to Plaintiff. Although the typed portion did not set forth an interest rate, a handwritten "10%" appeared at the bottom corner of the document which Plaintiff described as the interest rate. There was no date set forth in the document by which the full amount would have been due, nor was there a provision setting forth payment installments or other terms. In each of several opportunities to address the Defendant's payments, Plaintiff repeatedly acknowledged that every six months the Defendant paid her $1,500.00 "as interest," but the principle was never repaid. In December 2008, the Plaintiff rejected a payment offered by Defendant whereby he had cross-endorsed a customer's check to the Plaintiff. After the Plaintiff rejected the check, Defendant stopped making any additional payments to Plaintiff.
The Defendant testified next. He confirmed Plaintiff's testimony, and clarified that the $23,000.00 was comprised of three loans Plaintiff made to Defendant culminating in that last document. Except for the two exhibits, neither party had any records of payments or receipts.
DECISION
In a matter such as this, it is the province and indeed the obligation of the trial court to assess and determine matters of credibility. Morgan v McCaffrey, 14 AD3d 670, 789 N.Y.S.2d 274 (2d Dep't 2005); Matter of Liccione v Michael A., 65 NY2d 826, 493 N.Y.S.2d 121 (1985). Here, the burden is upon the plaintiff to plead and prove its direct case by a fair preponderance of the credible, relevant and material evidence. Prince-Richardson on Evidence, §3-210; Torem v Central Avenue Rest, 133 AD2d 25, 518 N.Y.S.2d 620 (1st Dep't 1987). Based upon the court's observations of both parties' demeanor, as well as the manner in which they testified, it finds both parties credible.
The Plaintiff and Defendant each are in their golden years and critically ill. They had a decades long friendship within a tight-knit community, that might now be irretrievably broken by this dispute. But the Court cannot be affected by sympathy for any party. This decision is based upon fundamental principles of accounting.
All prior documents signed by the Defendant prior to the 1989 document are not in controversy. Absent language indicating that the prior promise to pay survived and was not merged into the last document results in the final document being the one to bind the parties. Therefore, all obligations flow from the final $23,000.00 document. Both parties testified that the Defendant paid $1,500.00 every six months to Plaintiff, or $3,000.00 annually. It is therefore undisputed that in the first year the Defendant paid $700.00 over and above the accruing interest. The over-payments had to be applied to the principle balance thereby reducing with each subsequent payment the amount owed. The Plaintiff was wrong in characterizing the payments as "only interest" without applying the over-payments to the principle balance.
After conclusion of the testimony, the Court conferenced with both attorneys in chambers. Using an on-line amortization program, the semi-annual $1500.00 payment was applied to the $23,000.00 principle with 10% interest. The result was full amortization of original principle. The following amortization schedule is included for the benefit of the parties:
+-------------------------------------------------------------------------+ ¦No.¦Due Date ¦Payment Due¦Additional Payment¦Interest¦Principal¦ Balance¦ +-------------------------------------------------------------------------¦ ¦ $23,000.00¦ +-------------------------------------------------------------------------¦ ¦ 1 ¦6/1/1989 ¦ 1,496.18¦ 0.00¦1,150.00¦ 346.18¦22,653.82¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦ 2 ¦12/1/1989¦ 1,496.18¦ 0.00¦1,132.69¦ 363.49¦22,290.33¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦ 3 ¦6/1/1990 ¦ 1,496.18¦ 0.00¦1,114.52¦ 381.66¦21,908.67¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦ 4 ¦12/1/1990¦ 1,496.18¦ 0.00¦1,095.43¦ 400.75¦21,507.92¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦ 5 ¦6/1/1991 ¦ 1,496.18¦ 0.00¦1,075.40¦ 420.78¦21,087.14¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦ 6 ¦12/1/1991¦ 1,496.18¦ 0.00¦1,054.36¦ 441.82¦20,645.32¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦ 7 ¦6/1/1992 ¦ 1,496.18¦ 0.00¦1,032.27¦ 463.91¦20,181.41¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦ 8 ¦12/1/1992¦ 1,496.18¦ 0.00¦1,009.07¦ 487.11¦19,694.30¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦ 9 ¦6/1/1993 ¦ 1,496.18¦ 0.00¦ 984.72¦ 511.46¦19,182.84¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦10 ¦12/1/1993¦ 1,496.18¦ 0.00¦ 959.14¦ 537.04¦18,645.80¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦11 ¦6/1/1994 ¦ 1,496.18¦ 0.00¦ 932.29¦ 563.89¦18,081.91¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦12 ¦12/1/1994¦ 1,496.18¦ 0.00¦ 904.10¦ 592.08¦17,489.83¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦13 ¦6/1/1995 ¦ 1,496.18¦ 0.00¦ 874.49¦ 621.69¦16,868.14¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦14 ¦12/1/1995¦ 1,496.18¦ 0.00¦ 843.41¦ 652.77¦16,215.37¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦15 ¦6/1/1996 ¦ 1,496.18¦ 0.00¦ 810.77¦ 685.41¦15,529.96¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦16 ¦12/1/1996¦ 1,496.18¦ 0.00¦ 776.50¦ 719.68¦14,810.28¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦17 ¦6/1/1997 ¦ 1,496.18¦ 0.00¦ 740.51¦ 755.67¦14,054.61¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦18 ¦12/1/1997¦ 1,496.18¦ 0.00¦ 702.73¦ 793.45¦13,261.16¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦19 ¦6/1/1998 ¦ 1,496.18¦ 0.00¦ 663.06¦ 833.12¦12,428.04¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦20 ¦12/1/1998¦ 1,496.18¦ 0.00¦ 621.40¦ 874.78¦11,553.26¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦21 ¦6/1/1999 ¦ 1,496.18¦ 0.00¦ 577.66¦ 918.52¦10,634.74¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦22 ¦12/1/1999¦ 1,496.18¦ 0.00¦ 531.74¦ 964.44¦ 9,670.30¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦23 ¦6/1/2000 ¦ 1,496.18¦ 0.00¦ 483.52¦ 1,012.66¦ 8,657.64¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦24 ¦12/1/2000¦ 1,496.18¦ 0.00¦ 432.88¦ 1,063.30¦ 7,594.34¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦25 ¦6/1/2001 ¦ 1,496.18¦ 0.00¦ 379.72¦ 1,116.46¦ 6,477.88¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦26 ¦12/1/2001¦ 1,496.18¦ 0.00¦ 323.89¦ 1,172.29¦ 5,305.59¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦27 ¦6/1/2002 ¦ 1,496.18¦ 0.00¦ 265.28¦ 1,230.90¦ 4,074.69¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦28 ¦12/1/2002¦ 1,496.18¦ 0.00¦ 203.73¦ 1,292.45¦ 2,782.24¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦29 ¦6/1/2003 ¦ 1,496.18¦ 0.00¦ 139.11¦ 1,357.07¦ 1,425.17¦ +---+---------+-----------+------------------+--------+---------+---------¦ ¦30 ¦12/1/2003¦ 1,496.43¦ 0.00¦ 71.26¦ 1,425.17¦ 0.00¦ +-------------------------------------------------------------------------+
The $23,000.00 was fully repaid before the end of 2003. Yet, the Defendant continued to pay, which the Plaintiff continued to accept, $1,500.00 semi-annually until December 2008. Accordingly, the Plaintiff was paid about $15,000.00 over and above the repayment obligation.
CONCLUSION
The Court can only dismiss the complaint. Defendant did not set forth any counterclaims so he cannot be granted judgment for any over-payment. Based upon the above, the Court need not entertain the Statute of Limitations and Statute of Frauds defenses raised by Defendant.
Accordingly, it is hereby
ORDERED that the complaint is dismissed.
This constitutes the decision and order of the Court.
ENTER
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Judge