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Salgado v Deglinnocenti 2015 NY Slip Op 51290(U) Decided on September 2, 2015 District Court Of Nassau County, First District Fairgrieve, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 2, 2015
District Court of Nassau County, First District

Teresa Salgado and Carmino Salgado, Plaintiff(s)

against

Adele Deglinnocenti, Defendant(s)

CV-027833-13

Meltzer, Lippe, Goldstein & Breitstone, LLP

Attorneys for Plaintiffs

190 Willis Avenue

Mineola, New York 11501

516-747-0300

Hankin & Mazel, PLLC

Attorneys for Defendant

60 Cutter Mill Road, Suite 505

Great Neck, New York 11021

516-499-5800

Scott Fairgrieve, J.
Trial Decision

Plaintiffs commenced this action against defendant Adele Deglinnocenti to recover the sum of $6,800 allegedly given her as a loan to assist in paying her mortgage.

In her Answer dated December 20, 2013, Defendant denies liability for the loan and asserts a counterclaim for $25,000 based upon frivolous conduct.

Facts

Carmino Salgado (“Plaintiff”) testified at trial that he came to know Defendant through his business dealings with her husband, Benny Malluzio. They started doing a joint venture in Miami in “2010 or so”, for which Plaintiff provided the financing.

Plaintiff was asked by Benny Malluzio for a loan to his wife, Defendant Adele Deglinnocenti, to help pay the mortgage, which was in arrears. Plaintiff testified as follows:

Q.Now, this loan, describe, I guess describe the circumstances surrounding the loan, when you gave the loan to the Defendant.
A.I gave the loan to the Defendant at the request of her husband. And her husband asked me that he was behind along with Adele on the mortgage of the house. If I could help him with a check to alleviate, or to satisfy the mortgage to the bank. That they would get the money back to me within a month.
In 2011, Plaintiff spoke with Defendant via phone, and gave Plaintiff her name and the amount of the check. They also discussed that the check was to help with the mortgage.

Plaintiff testified that he issued a check to Defendant, dated June 13, 2011, in the sum of $6,800. The check, numbered 0691, is drawn on BCP Bank. In the memo section of the check, Plaintiff wrote “Loan to Benny.”

Plaintiff proffered a copy of the original check, which this court allowed into evidence, over objection by Defendant, as explained in the legal discussion portion of this decision. Plaintiff failed to subpoena the original check from the Bank.

Plaintiff delivered the check to Defendant’s residence located in Whitestone, Queens, New York. When Plaintiff gave the check to Defendant, the Defendant stated:

Q.And did the Defendant agree to these terms?
A.I was the understanding. She didn’t exactly agree to it. She said we will pay you within, you know, whatever time you say. She knew it was a loan, if that’s the question.
On cross examination, Plaintiff again stated that he spoke to Defendant on the phone to ask her name and the amount of the check. Plaintiff had never spoken to Defendant before the conversation about the loan.

Plaintiff testified that the loan agreement was not with Benny Malluzio. Plaintiff wrote “loan to Benny because that’s her husband’s name. And it would remind me what the check was for.”

Plaintiff stated that he spoke to Mr. Malluzio and he asked if Plaintiff could help his wife with the mortgage payments; the house was in the wife’s name. If the house was in the name of Mr. Malluzio, then he would have made the loan directly to him.

Plaintiff spoke to Defendant who gave him her name and the amount she needed.

On cross examination, Plaintiff first stated that he spoke to Defendant about paying him back within a month. However, when pressed on this subject, Plaintiff testified that he might not have had the foregoing conversation.

Q.On that conversation – – that two-minute conversation? Did you say anything further to her?
A.Yeah, that this was to help her out so she could pay me back within a month or so?
Q.You said that to her on the phone?
A.We had that conversation.
Q.You said that to her on the phone?
A.I might have not said it – –
Q.Under oath? Under oath?
A.No, I might not have said it. No I might not have said it.
Q.You might not have said it, okay.
A.But when I delivered the check it was discussed.
Q.Okay. You’ve got to make up your mind. Because this is a court of law.
A.Right.
* * *Q.I want to know if you remember saying it? If you’re not sure you said it? Tell the court.

A.I’m not sure I said it.
A day after the phone call, Plaintiff went to Defendant’s home in Whitestone to deliver the check. Defendant opened the door and Plaintiff gave her the check and stated “Here’s the check for your mortgage payment.” Plaintiff testified “I don’t remember [the] specific conversation I had with her.”

On redirect, Plaintiff again reiterated that he called Defendant and obtained her name and the amount for the check:

Q.Pursuant to a conversation you had with her? Did you have a conversation with – –
A.Yeah, I was calling because her husband instructed me to call her and we went through the scenario of what the check was for, and what the amount was for. And that’s how I got the amount right, and the name right.
Defendant testified that she neither met nor spoke with Plaintiff prior to the date of the trial. Her husband Ben told her a check was being dropped off by Mr. Salgado, and she was to deposit the check into their joint account. The check was placed in her mail box, but she never spoke to Plaintiff about the check.

Defendant denied making an agreement with Plaintiff about the check.

On cross examination, Defendant remembered depositing a check but not the specific check before the court. Her last name is Deglinnocenti and her husband never used this name.

Defendant did not recall receiving $6,800 from Plaintiff personally, but it was in her mail box.

Defendant stated at trial that the wording “for deposit only” on the back of the check didn’t look like her handwriting. Defendant stated the following concerning receiving the $6,800:

Q.So, $6,800 was to poof, it vanished? You never received $6,800 was your testimony.
A.I never received $6,800 from – – I’m sorry. Even with my glasses I can’t read this.

Law
The first question before this court was the admissibility of the copy of the $6,800 check into evidence. Defendant objected to the copy of the check being placed into evidence based upon the best evidence rule. Defendant urged that the original check had to be used and not a copy. Plaintiff never attempted to secure the original check from the bank for trial.

Over the objection of Defendant, this court allowed into evidence a copy of the check. This was the correct procedure to follow based upon the Second Department holding in Rotanelli v. Longo, 210 AD2d 392, 620 NYS2d 130 (2d Dept 1994). In Rotanelli, the Court held:

We find no error in the admission of the copy of the loan check into evidence. The defendant admitted that the plaintiff had tendered a check for $12,000 and that he had signed the check over to a business associate for investment in a limited partnership. Because there was no dispute as to the contents of the writing (i.e., the check), but only as to whether the money was intended as a gift or a loan, the best evidence rule did not prevent admission of the check into evidence (see, Richardson, Evidence, § § 568, 572 et seq. [Prince 10th ed.]).
See also NY Jur Evidence, § 246 and Edith L. Fisch, Fisch on New York Evidence, 2nd ed, § 87, Photographs and Reproductions, both explaining the widespread use of photographic reproductions of writings.

In the case at bar, the parties agree that a check was issued by Plaintiff for the mortgage. Plaintiff testified that he gave a $6,800 check to Defendant (Exhibit 1). Defendant denies having personally received Exhibit 1, but does admit that she found a check from Plaintiff in her mail box and deposited it into her joint account with her husband. Defendant denies writing “for deposit only” on Exhibit 1.

Based upon the above, the issue before the court is whether Exhibit 1 was a loan which Defendant agreed to repay or a loan to Defendant’s husband, Benny Malluzio, for which he is [*2]liable.

This court finds the case at bar very difficult to decide. However, based upon a thorough review of the testimony, it is the determination of this court that Plaintiff made the loan agreement with Benny Malluzio and not with the Defendant.

This court finds that Plaintiff did call Defendant and obtained the spelling of her name and the amount of the check. However, there was no express promise by Defendant to repay the loan. Instead, Defendant was a third party beneficiary of the loan agreement between Plaintiff and Benny Malluzio.

On cross examination, Plaintiff admitted that he might not have had a conversation with Defendant about paying him back within a month or so. In fact, Plaintiff testified, “I’m not sure I said it.”

In Crozier v. Sauers, 109 AD3d 507, 508, 970 NYS2d 323 (2d Dept 2013), the Second Department upheld the finding of the lower court that Defendant Sauers did not agree to be personally liable for the loan money, which was used by a corporation of which Defendant Sauers was an owner:

Here, the parties understood that the funds were intended to be used for corporate purposes, were advanced to the corporation, were deposited into the corporation’s account, and were actually used for corporate purposes. Furthermore, the plaintiff failed to adduce evidence that Sauers agreed to be personally responsible for repaying the loan prior to the advancement of the funds. Under the circumstances presented here, the Supreme Court’s determination that Sauers agreed to be personally liable for the debt alleged by the plaintiff was not warranted by the facts (see Melius v. Breslin, 46 AD3d 524, 525, 846 NYS2d 645; see also Glazer v. Ottimo, 84 AD3d 1023, 923 NYS2d 855; Kallman v. Pinecrest Modular Homes, Inc., 81 AD3d 692, 693, NYS2d 221; Knect v. Nassau County Native Ams. Inc., 41 AD3d 435, 436, 837 NYS2d 717).
Accordingly, the judgment must be reversed and the complaint dismissed insofar as asserted against Sauers.

In the instant case, the Plaintiff failed to sustain his burden of proof that a loan was agreed to between the parties. The fact that Defendant received a benefit of Plaintiff’s dealings with Benny Malluzio does not make her liable for the loan. Such was the case in Fountoukis v. Geringer, 33 AD3d 756, 822 NYS2d 644 (2d Dept 2006), wherein the Defendant Cohler was not liable because he didn’t request the money transfer:

Similarly, as to the cause of action for unjust enrichment, the plaintiff must look for recovery to Geringer, and not Cohler, since the $200,000 money transfer was performed at the behest of Geringer (see Schuckman Realty v. Marine Midland Bank, 244 AD2d [*3]400, 401, 664 N.Y.S.2d 73; Kagan v. K-Tel Entertainment, 172 AD2d 375, 376, 568 N.Y.S.2d 756).
Also on point is Kagan v. K-Tel Entertainment, Inc., 172 AD2d 375, 568 NYS2d 756 (1st Dept 1991), wherein the First Department ruled that a defendant cannot be held responsible if services were performed from which defendant received a benefit and s/he didn’t request the service:

Plaintiffs’ claim is without merit. As reflected in the common law of the various states, to recover under a theory of quasi contract, a plaintiff must demonstrate that services were performed for the defendant resulting in its unjust enrichment (Kapral’s Tire Svc. v. Aztek Tread Corp., 124 AD2d 1011, 1013, 508 N.Y.S.2d 777). It is not enough that the defendant received a benefit from the activities of the plaintiff (Armstrong v. I.T.T.S. Corp., 10 AD2d 711, 198 N.Y.S.2d 641); if services were performed at the behest of someone other than the defendant, the plaintiff must look to that person for recovery (Citrin v. Columbia Broadcasting, 29 AD2d 740, 286 N.Y.S.2d 706).
Applying the Kagan rationale to the case at bar, Plaintiff must look to Benny Mazullio for repayment of the loan because the agreement was between them. Plaintiff has failed to sustain his burden that Defendant agreed to repay the loan. This result is entirely consistent with the Second Department’s holding in JLJ Recycling Contractors Corp. v. Town of Babylon, 302 AD2d 430, 431, 754 NYS2d 897 (2003):

Contrary to the plaintiff’s contention, it was not entitled to recover the value of the services it provided to the Babylon Recycling Center, Inc., which benefited the defendant Town of Babylon. Under the theory of quantum meruit, if the services were performed at the behest of someone other than the defendant, the plaintiff must look to that party for recovery.

Conclusion
Based upon the above, the case is dismissed because Plaintiff failed to sustain his burden of proof that Defendant agreed to be responsible for the loan. The Defendant was a third party beneficiary of the loan agreement between Plaintiff and Mr. Malluzio.

So Ordered:

Hon. Scott Fairgrieve