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Cruz v. Winitt

Appellate Term of the Supreme Court of New York, Second Department
Nov 19, 2007
2007 N.Y. Slip Op. 52202 (N.Y. App. Div. 2007)

Opinion

2006-1627 S C.

Decided November 19, 2007.

Appeal from a judgment of the District Court of Suffolk County, Second District (C. Steven Hackeling, J.), entered February 23, 2006. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $6,257.58 and dismissed the third-party complaint.

PRESENT: RUDOLPH, P.J., McCABE and TANENBAUM, JJ.


Judgment modified by deleting the provision dismissing the third-party complaint, and substituting therefor a provision directing entry of judgment in favor of the third-party plaintiff against the third-party defendant in the principal sum of $6,257.58; as so modified, affirmed without costs.

In this action, plaintiff Mary Gilda Cruz seeks to recover the balance due under a promissory note signed by defendant Marcie E. Winitt. Contrary to defendant's contention, the evidence adduced at trial established that plaintiff loaned the amount indicated in the promissory note at the behest of the defendant and, thus, there was sufficient consideration for the note ( see UCC 3-408). Accordingly, there is no basis to disturb the portion of the judgment awarding plaintiff the principal sum of $6,257.58, the balance due under the note.

The third-party complaint should not have been dismissed. In the third-party action, the third-party plaintiff sought to recover from plaintiff's son, Jason Michael Cruz, for breach of contract. Marcie Winitt and Jason Cruz had signed a three-year lease to share an apartment together. Winitt testified that Jason Cruz agreed to pay 50% of the rent. Winitt further testified that when Jason Cruz moved out of the premises after a year, she and Jason Cruz agreed that she would be solely responsible to pay the rent and that Jason Cruz would repay the balance due under the promissory note. In our view, the weight of the evidence established that there was such an agreement between Winitt and Jason Cruz which governs their rights and obligations. Since Jason Cruz breached the contract, as modified, when he failed to pay the installments due under the promissory note held by his mother, Mary Gilda Cruz, Winitt is entitled to recover the principal sum of $6,257.58 against third-party defendant Jason Michael Cruz.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.


Summaries of

Cruz v. Winitt

Appellate Term of the Supreme Court of New York, Second Department
Nov 19, 2007
2007 N.Y. Slip Op. 52202 (N.Y. App. Div. 2007)
Case details for

Cruz v. Winitt

Case Details

Full title:MARY GILDA CRUZ, Respondent, v. MARCIE E. WINITT, Appellant. MARCIE E…

Court:Appellate Term of the Supreme Court of New York, Second Department

Date published: Nov 19, 2007

Citations

2007 N.Y. Slip Op. 52202 (N.Y. App. Div. 2007)