Hemmings v. Sutton

2017 NY Slip Op 4401, 151 A.D.3d 457, 55 N.Y.S.3d 232

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 6, 2017
• Docket: 4181 601507/08
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Barry R. Ostrager, J.), entered December 17, 2015, dismissing with prejudice the complaint seeking to enforce a promissory note, and bringing up for review an order, same court and Justice, entered on or about September 30, 2015, which, after a bench trial, directed that judgment be entered in favor of defendant, unanimously affirmed, with costs.

The trial court properly concluded that the note plaintiff sought to enforce was void due to a lack of consideration (see UCC 3-408; Samet v Binson, 122 AD3d 710, 711 [2d Dept 2014]). Plaintiff testified that the note was given in exchange for past economic, technological, and financial assistance, but failed to submit any documentary evidence of such work. The trial court found the claim to be not credible, and that finding is entitled to deference on appeal (see Matter of Metropolitan Transp. Auth., 86 AD3d 314, 320 [1st Dept 2011]; see also New Media Holding Co. L.L.C. v Kagalovsky, 118 AD3d 68, 78 [1st Dept 2014]).

We have considered plaintiff’s remaining contentions and find them unavailing.

Concur—Renwick, J.P., Richter, Feinman, Gische and Kahn, JJ.