| Siebert v Dermigny |
| 2009 NY Slip Op 01920 [60 AD3d 526] |
| March 19, 2009 |
| Appellate Division, First Department |
| Muriel Siebert, Appellant, v Nicholas Dermigny,Respondent. |
—[*1] The Law Offices of Fred Van Remortel, P.C., New York (Allan J. Berlowitz of counsel), forrespondent.
Judgment, Supreme Court, New York County (Walter B. Tolub, J.), entered May 30, 2007,after nonjury trial, dismissing the action, unanimously affirmed, with costs. Appeal from order,same court and Justice, entered on or about same date, which dismissed the action after findingsof fact and conclusions of law, unanimously dismissed, without costs, as subsumed in the appealfrom the judgment.
Plaintiff bore the burden of proof in this action on an unpaid loan. The question was whetherthe money advanced to defendant was actually a loan in the form of a down payment on aManhattan co-op apartment, as alleged, or whether it was simply payment on a debt in the formof reimbursement of rent on a New Jersey apartment. As the trial court determined, the testimonyof neither party was credible, and there is no basis for concluding that the findings of fact couldnot have been reached under any fair interpretation of the evidence, especially where thosefindings rest in large part on witness credibility (see Thoreson v Penthouse Intl., 80NY2d 490, 495 [1992]).
The court noted the absence of a written agreement between the parties or any purposememorialized on plaintiff's check that might have indicated the funds advanced to defendantconstituted a loan. Furthermore, plaintiff failed to demand payment from defendant even afterthe latter received substantial bonuses. Whether a notation in plaintiff's check ledger (that the[*2]check represented a loan) constituted a contemporaneouswriting rested on plaintiff's credibility, which the court found lacking. Concur—Tom, J.P.,Saxe, Sweeny, Acosta and Freedman, JJ.