Feinberg v. Shaw

38 A.D.3d 304, 832 N.Y.S.2d 800

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 13, 2007
• Status: Published

Opinion

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered January 19, 2006, which, inter alia, granted defendants’ cross motion for summary judgment insofar as it sought dismissal of plaintiffs claims relating to the “Levitt promissory notes” for lack of merit, and denied the cross motion insofar as it sought dismissal of the entire complaint as time-barred, unanimously affirmed, without costs.

Issues of fact exist whether plaintiff received the amended complaint in the “Levitt” action and, if so, whether he was thereby put on notice of the alleged deficiencies in his return on certain investments. Plaintiffs deposition testimony is not dis-positive of this issue. The motion court correctly found that the 1987 security agreement, on which defendants predicate their priority interest in the proceeds of the sale of the LaColline residence, and the perfection of their security interest by their filing of UCC-1 financing statements in 1987, did not give plaintiff notice of any of his claims relating to the 1986 loan transaction. The court otherwise correctly found that unresolved issues of fact as to the accrual of plaintiffs claims preclude the grant of summary judgment to defendants. The record contains no documents or other evidence tending to show that defendants were obligated to pay the “Levitt promissory notes,” which were signed only by Levitt and by their terms payable only by him, and the motion court properly dismissed that claim on the merits. Concur—Mazzarelli, J.E, Marlow, Buckley, Sweeny and Kavanagh, JJ.