| Rotta v Ferreira |
| 2005 NYSlipOp 01699 |
| March 7, 2005 |
| Appellate Division, Second Department |
| Dan Rotta, Appellant, v Fabio Ferreira, Respondent. |
—[*1]
In an action to recover the proceeds of a loan, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Dunne, J.), entered November 3, 2003, which, after a jury trial, and upon the granting of the defendant's motion pursuant to CPLR 4401 made at the close of the plaintiff's case, in effect, to dismiss the complaint for failure to establish a prima facie case, is in favor of the defendant and against him dismissing the complaint.
Ordered that the judgment is affirmed, with costs.
Viewing the evidence in the light most favorable to the plaintiff and giving him the benefit of every favorable inference (see Zboray v Fessler, 154 AD2d 367 [1989]), the Supreme Court properly granted the defendant's motion pursuant to CPLR 4401 made at the close of the plaintiff's case, in effect, to dismiss the complaint for failure to establish a prima facie case. The evidence presented at trial conclusively demonstrated that there was no meeting of the minds between the parties with respect to the repayment of a loan for legal expenses incurred by the plaintiff on the defendant's behalf. Despite the alleged initial oral discussions about the repayment of those expenses, the plaintiff's attorney subsequently prepared a promissory note which conditioned the repayment of the legal expenses upon the defendant's prevailing in a separate civil action against the plaintiff's then-estranged girlfriend. Significantly, the defendant never signed this note.
The plaintiff's remaining contentions are without merit. Schmidt, J.P., Santucci, Luciano and Mastro, JJ., concur.