Valle v. Onyx Org., LLC

Full title: ALTAGRACIA VALLE, Plaintiff, v. ONYX ORGANIZATION, LLC, ONYX PROPERTIES…

Court: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

Date published: Jul 24, 2014

2014 N.Y. Slip Op. 31984 (N.Y. Sup. Ct. 2014)

Opinion

Index No. 154729/12

07-24-2014

ALTAGRACIA VALLE, Plaintiff, v. ONYX ORGANIZATION, LLC, ONYX PROPERTIES, LLC, and SADIQ MURRAY a/k/a MIKE GREEN, Defendant.

For Plaintiff, Myra G. Sencer, Esq. Myra G. Sencer, P.C. 206 Stonehinge Lane-Suite 1 Carle Place, New York 11514 For Defendants ONYX and, ONYX PROPERTIES-(Default),2 383 Brook Avenue North Plainfield, New Jersey 87062

Lancelot B. Hewitt, Special Referee

Decision and Order

ORDER OF THE SUPREME COURT, NEW YORK COUNTY: PART 81R

By decision and order of the Honorable Paul Wooten dated October 7, 2013, the issues of the amount of damages owed to plaintiff, as well as whether plaintiff meets the standard for entitlement to attorneys' fees and punitive damages against defendants ONYX ORGANIZATION, LLC ("ONYX") and ONYX PROPERTIES, LLC ("ONYX PROPERTIES"), were referred for assignment to a Special Referee to hear and determine.¹

1 The court granted the motion made by plaintiff for a default judgment as against ONYX and ONYX PROPERTIES, and severed the action as against these defendants.

The instant matter was assigned to the undersigned Special Referee on January 29, 2014, at which time counsel for plaintiff appeared. Appearances were as follows: For Plaintiff,
Myra G. Sencer, Esq.
Myra G. Sencer, P.C.
206 Stonehinge Lane-Suite 1
Carle Place, New York 11514
For Defendants ONYX and,
ONYX PROPERTIES-(Default),²
383 Brook Avenue
North Plainfield, New Jersey 87062

2 Defendant Sadiq Murray appeared at the hearing on behalf of ONYX but was advised by the undersigned Special Referee that since he was not the attorney of record for ONYX, there was no legal basis for his participation in the hearing. Murray was permitted, however, to remain in the office of the undersigned Special Referee during the hearing.

Findings of Fact

(1) Sometime prior to October 2011, plaintiff, as buyer, and defendant Sadiq Murray a/k/a Mike Green ('Murray"), as principal of ONYX, the seller, negotiated and entered into an agreement with respect to the purchase of certain real property allegedly owed by ONYX and/or ONYX PROPERTIES. (2) On or about October 6, 2011, plaintiff had issued a cashier's check in the amount of $19,000, drawn from her account at Citibank, NA. and made payable of ONYX.³ This cashier's check was issued pursuant to the parties' agreement to purchase the real property allegedly owned by ONYX and/or ONXY PROPERTIES. On or about October 6, 2011, plaintiff handed the cashier's check to Murray who accepted the check on behalf of ONYX. (3) On May 5, 2012, plaintiff had issued a second cashier's check drawn from her account at Citibank, NA, pursuant to the parties' agreement. Such cashier's check was in the amount of $10,000, and again made payable to ONYX.⁴ On May 5, 2012, plaintiff handed the cashier's check to Murray who accepted the check on behalf of ONYX. (4) Also May 5, 2012, Murray gave plaintiff a handwritten document regarding the sale of the real property, pursuant to the parties' agreement. The document dated and signed May 5, 2012 states:

"I Sadiaq Murray will put Grace Valle on the Deed of 544 South 11st Newark NJ 07102. This property will be owned by ONYX PROPERTY LLC
1 Washsington PK Newark NJ 07103 Received deposit of $10,000 cashier check (sic)."⁵

(3) Plaintiff never received a deed or any other documents from Murray or ONXY with respect to the purchase of the real property, as set forth in the parties' agreement. (4) On June 28, 2012, plaintiff executed a retainer agreement⁶ with the Law Offices of Myra G. Sencer, P.C. (the "law firm") with respect to representation in the instant matter. Plaintiff also made a $500 deposit. The law firm provided plaintiff with legal services during the course of its rep-resentation of her in the instant matter. (5) During such representation, the law firm sought "available information about Onyx Corporation, 1 Washington Park, Newark, New Jersey" from the "Department of State" via e-mail. The law firm was provided with information from the "Department of State" indicating that it had "no record of a corporation or other business entity with the name Onyx Corporation.'⁷

3 A Ciitbank "remitter copy" of this check was admitted into evidence as Plaintiff's Exhibit#1

4 A copy Citibank "remitter copy" of this check was admitted into evidence as Plaintiff's Exhibit#2.

5 This document was admitted into evidence as Plaintiff's Exhibit#3.

6 A copy of this document was admitted into evidence as Plaintiff's Exhibit#4.

7 A copy of this e-mail was admitted into evidence as Plaintiff's Exhibit#6.

Conclusions of Law

(1) The Special Referee's query is limited by the scope of the instant matter (see, Marshall v. Pappas, 143 AD2d 979 [2^nd Dept. 1988]-[a referee is controlled by the order of reference, and must comply with the direction therein]; Volk v. Volk, 254 AD2d 274 [2^nd Dept. 1998]). In determining the referenced issue, the referee determines whether or not the testimony is colored intentionally or unintentionally by those factors (see, Lauria v. Lauria, 187 AD2d 888, 889 [3^rd Dept. 1992]). (2) Although the witness may have an interest in the outcome of the litigation (see, Coleman v. New York City Tr. Auth., 41 AD2d 812, affirmed 37 NY2d 137 [1975]), which is highly material to the assessment of the credibility of the witness (see, 65 NY Jur., Witnesses, 71, pp. 233-234), it does not mean that the witness has not told the truth (see, Calandra v. Norwood, 81 AD2d 650, 651 [2^nd Dept. 1981]; Dobro v. Village of Sloan, 48 AD2d 243, 247-248, appeal dismissed 31 NY2d 804 [1975]-[it is widely accepted that whether a witness has a personal interest in the outcome of the litigation is a factor that must be identified in order to adequately perform the unique duty of weighing the evidence and assessing the credibility of witnesses]). (3) As the trier of fact, the referee has the liberty to disbelieve the testimony of witnesses even though it is not otherwise impeached or contradicted (see, Dominguez v. Manhattan & Bronx Surface Tr. Operating Auth., 46 NY2d 528, 534 [1979]-[issues of credibility are for the trier of fact]). (4) The parties must establish by a fair preponderance of the credible evidence that the claim they are making is true (see, Spangenberg v. Chaloupka, 229 AD2d 482, 484 [2^nd Dept. 1996]). The evidence must be relevant and have the tendency to make the existence of a fact more probable or less probable than it would be without the evidence (see, Epstein & Wessenberger, New York Evidence 1996/1997 Courtroom Manual 1996, Chap. 3-1, at 35; People v. Lewis, 69 NY2d 191, 192 [1997]-[evidence is relevant if it has any tendency in reason to prove any material fact]). Evidence which is "evenly balanced" is insufficient to overcome the burden of any applicable presumption (see, Rinaldi & Sons, Inc. v. Wells Fargo Alarm Service, Inc. 39 NY2d 191, 192 [1976]). (5) Damages awarded in breach of contract cases are intended to return parties to the point at which the breach arose, and to place the non-breaching party in as a good position as it would have been had the contract been performed (see, Brusthton-Moira Cent. School Dist. v. Fred H. Thomas Associate, P.C., 91 NY2d 256, 261 [1998]). In general, in order for punitive damages to be awarded, the plaintiff must demonstrate that the defendant's conduct is intentional and deliberate, has fraudulent or evil motive, and has the character of outrage frequently associated with crime (see, Morsette v. The Final Call, 309 AD2d 249, 254 [1^st Dept. 2003]). (6) An award of attorneys' fees must be supported by proof of billing and services rendered (see, Cwiklinski v. Cwiklinski, 115 AD2d951 [4^th Dept. 1985]). In determining the appropriate attorneys' fees, certain factors are to be considered by the court, such as the time and labor required; the difficulty of the questions presented; the skill required to perform the services, including the lawyer's experience, ability and reputation; the amount involved; and the benefit resulting to the client from the services (see, Matter of Freeman, 34 NY2d 1, 9 [1974]; Morgan & Finnegan v. Howe Chemical Co., Inc., 210 AD2d 62 [1^st Dept. 1994]). (7) A lawyer may of course perform certain "non-lawyer" work, such as clerical work of filing papers, but such work may command at a lesser rate. In other words, the dollar value of the work is not enhanced just because a lawyer performs it (see, In the Mater of Rahmey v. Blum, 95 AD2d 294, 301 [2^nd Dept. 1983]). (8) The court may form an independent judgment from the facts and evidence before it, as to the nature and extent of the services rendered, make an appraisal of such services, and determine the reasonable value thereof (see, Bankers Federal Sav. Bank, FSB v. Off West Broadway Development, 224 AD2d 376, 378 [1^st Dept. 1996]).

Analysis

(1) I have considered all of the relevant evidence, and I find that plaintiff has established, by a preponderance of the credible evidence, that she is entitled to an award of damages against ONXY and ONXY PROPERTIES, jointly and severally, in the amount of $29,000; ;punitive damages against ONXY and ONXY PROPERTIES, jointly and severally in the amount of $87,000; and an award of attorneys' fees against ONXY and ONXY PROPERTIES, jointly and severally, in the amount of $3,250 (see, Spangenberg v. Chaloupka, supra).

Damages

(2) Specifically, I find that plaintiff testified credibly that she and Murray, as principal of ONXY, negotiated and entered into an agreement, whereby she agreed to purchase real estate property alleged owned by ONYX and/or ONXY PROPERTIES (see, Lauria v. Laur-ia, supra). I also find that plaintiff testified credibly that on or about October 6, 2011, she gave Murray a cashier's check in the amount of $19,000, pursuant to the parties' agreement and that Murray accepted the check on behalf of ONYX (.id). I find that the documentary evidence corroborates plaintiff's testimony on this issue. (3) I also find that plaintiff testified credibly that on May 5, 2012, she met with Murray and gave him a second cashier's check in the amount of $10,000, pursuant to the parties' agreement, and that although she saw what appeared to be a contract of sale for the real estate property alleged owned by ONYX and/or ONXY PROPERTIES, Murray advised her that she could not sign the document at that time (.id). (4) I further find that plaintiff testified credibly that Murray also advised her that when a deed for the real estate property was properly prepared, he would add her name to such document as "owner" (.id). I find that the documentary evidence corroborates her testimony on this issue. (5) I also find that plaintiff testified credibly that no deed conveying ownership of the real estate property allegedly owned by ONXY and/or ONXY PROPERTIES, pursuant to the parties' agreement, was ever given to her by Murray (.id). As such, I find that plaintiff is entitled to an award in damages against ONXY and ONXY PROPERTIES, jointly and severally, in the amount of $29,000 (see, Brushton-Moira Cent. School Dist. v. Fred H. Thomas Associates , P.C., supra),.

Attorneys' Fees

(6) I find that Ms Myra G. Sencer, Esq., counsel for the law firm, testified credibly that the plaintiff and the law firm executed a retainer agreement in June 2012, with respect to the instant matter (.id). I find that the documentary evidence corroborates counsel's testimony on this issue. I also find that counsel testified credibly as to the legal services rendered to plaintiff during the law firm's representation of her, and as set forth in the invoice dated September 19, 2013 (.id). (6) I find that although counsel failed to offer any testimony with respect to the time and labor required to perform the services, the skill involved, or with respect to other relevant factors (see, Matter of Freeman, supra), it is clear that there is sufficient proof of billing and services rendered to support an award of attorneys' fees against ONXY and ONXY PROPERTIES, jointly and severally, in the amount of $3,250 (see, Cwiklinski v. Cwikinski, supra; Bankers Federal Sav. Bank, FSB v. Off West Broadway Development, supra).

Punitive Damages

(7) Moreover, I find that counsel testified credibly that the law firm's inquiry with the New Jersey Secretary of State regarding ONXY revealed that there was no record of such corporation with the New Jersey Secretary of State (.id). I find that the documentary evidence corroborates counsel's testimony on this issue. (8) I find that the evidence demonstrates that the manner in which Murray, as principal of ONXY, conducted business with plaintiff was "intentional and deliberate," had "fraudulent or evil intent," and that such conduct was of the character to elicit "outrage frequently associated with crime" (see, Morsette v. The Final Call, supra). As such, I find that plaintiff is also entitled to an award in punitive damages against ONXY and ONXY PROPERTIES, jointly and severally, in the total amount of $87,000, representing the treble damages sought by plaintiff (.id).

Conclusion

Upon consideration of all the testimony presented, the considered credibility to be afforded the witness, and review of the exhibits admitted into evidence, I find that plaintiff is entitled to an award in damages against ONXY and ONXY PROPERTIES, jointly and severally, in the amount of $29,000; punitive damages against ONXY and ONXY PROPERTIES, jointly and severally, in the amount of $87,000; and attorneys' fees against ONXY and ONXY PROPERTIES, jointly and severally, in the amount of $3,250.

ORDERED that the Clerk of the Court is directed to enter judgment in favor of plaintiff Altagracia Valle and against defendants Onxy Organization, LLC and Onxy Properties, LLC, jointly and severally, in the amount of $116,000⁸;

8 (i.e., Breach of contract).

ORDERED that the Clerk of the Court is also directed to enter judgment in favor of plaintiff Altagracia Valle and against defendants Onxy Organization, LLC and Onxy Properties, LLC, jointly and severally, in the amount of $3,250⁹;

9 (i.e., Attorneys' fees).
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ORDERED that interest on the judgment in the amount of $116,000 shall be calculated at the statutory rate, as accrued beginning May 5, 2012, together with costs and disbursements, to be taxed by the Clerk upon submissions on an appropriate bill of costs.

The foregoing constitutes the decision and order of the court. Date: July 24, 2014.

/s/_________

Lancelot B. Hewitt,

Special Referee

/s/_________

Clerk of the Court