PSI International, Inc. v. Ottimo

Appellate Division of the Supreme Court of New York

PSI International, Inc. v. Ottimo

272 A.D.2d 279, 708 N.Y.S.2d 100, 2000 N.Y. App. Div. LEXIS 6096

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 30, 2000

StatusPublished

Cited by1 cases

This text of 272 A.D.2d 279 (PSI International, Inc. v. Ottimo) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

PSI International, Inc. v. Ottimo, 272 A.D.2d 279, 708 N.Y.S.2d 100, 2000 N.Y. App. Div. LEXIS 6096 (N.Y. Ct. App. 2000).

Pincite

Opinion

—Order, Supreme Court, New York County (Charles Ramos, J.), entered March 29, 1999, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiffs cause of action for breach of contract was properly dismissed absent evidence sufficient to rebut defendants’ prima facie showing that the contract in issue, an oral agreement to extend credit, was with their corporations and not themselves. Such prima facie showing was made out with proof that plaintiff placed its UCC-1 lien on and sent its invoices to defendants’ corporations, and was bolstered by the fact that every invoice from a vendor was also sent to the corporations. In opposition, plaintiffs president and sole shareholder asserted that defendants, who are brothers, approached him for credit, and that he agreed to their request “on a personal level” because one of them was about to marry his daughter and “they were going to part of my family and I wanted to help them out,” and they “assured me they would never stick me for [280]*280the money.” Absent a showing that defendants personally benefitted from the credit that they used to purchase merchandise in their corporations’ names and for which plaintiff billed their corporations, plaintiff’s assertions at best show a promise by defendants to answer for the debt of their corporations that is unenforceable under the Statute of Frauds (General Obligations Law § 5-701 [a] [2]; see, Matter of Atkin Castings v Fabrikant & Sons, 216 AD2d 111, 112). Nor does plaintiff show that it has a cause of action for fraud by asserting that defendants never intended to keep their promise to be personally and primarily liable for the credit that plaintiff extended to their corporations. Any such promise can hardly be considered collateral to the alleged oral agreement to loan money, and therefore cannot be the predicate for a fraud claim based on a promise made with a preconceived intention of not performing it (see, Deerfield Communications Corp. v Chesebrough-Ponds, Inc., 68 NY2d 954). Indeed, nothing is more central to a loan agreement than identification of the party responsible for repayment of the loan (cf., Orix Credit Alliance v liable Co., 256 AD2d 114, 115-116). Concur — Wallach, J. P., Andrias, Saxe and Buckley, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

—Order, Supreme Court, New York County (Charles Ramos, J.), entered March 29, 1999, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiffs cause of action for breach of contract was properly dismissed absent evidence sufficient to rebut defendants’ prima facie showing that the contract in issue, an oral agreement to extend credit, was with their corporations and not themselves. Such prima facie showing was made out with proof that plaintiff placed its UCC-1 lien on and sent its invoices to defendants’ corporations, and was bolstered by the fact that every invoice from a vendor was also sent to the corporations. In opposition, plaintiffs president and sole shareholder asserted that defendants, who are brothers, approached him for credit, and that he agreed to their request “on a personal level” because one of them was about to marry his daughter and “they were going to part of my family and I wanted to help them out,” and they “assured me they would never stick me for [280]*280the money.” Absent a showing that defendants personally benefitted from the credit that they used to purchase merchandise in their corporations’ names and for which plaintiff billed their corporations, plaintiff’s assertions at best show a promise by defendants to answer for the debt of their corporations that is unenforceable under the Statute of Frauds (General Obligations Law § 5-701 [a] [2]; see, Matter of Atkin Castings v Fabrikant & Sons, 216 AD2d 111, 112). Nor does plaintiff show that it has a cause of action for fraud by asserting that defendants never intended to keep their promise to be personally and primarily liable for the credit that plaintiff extended to their corporations. Any such promise can hardly be considered collateral to the alleged oral agreement to loan money, and therefore cannot be the predicate for a fraud claim based on a promise made with a preconceived intention of not performing it (see, Deerfield Communications Corp. v Chesebrough-Ponds, Inc., 68 NY2d 954). Indeed, nothing is more central to a loan agreement than identification of the party responsible for repayment of the loan (cf., Orix Credit Alliance v liable Co., 256 AD2d 114, 115-116). Concur — Wallach, J. P., Andrias, Saxe and Buckley, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

272 A.D.2d 279, 708 N.Y.S.2d 100, 2000 N.Y. App. Div. LEXIS 6096, Counsel Stack Legal Research, https://law.counselstack.com/opinion/psi-international-inc-v-ottimo-nyappdiv-2000.

Opinion

Related

Cite This Page — Counsel Stack