| Sherwood v Brock |
| 2009 NY Slip Op 06103 [65 AD3d 738] |
| August 6, 2009 |
| Appellate Division, Third Department |
| Martha Sherwood et al., Respondents, v Anthony J. Brock et al.,Appellants. |
—[*1] Nolan & Heller, L.L.P., Albany (Francis J. Brennan of counsel), for respondents.
McCarthy, J. Appeal from a judgment of the Supreme Court (Lalor, J.), entered May 20,2008 in Greene County, upon a decision of the court in favor of plaintiffs.
Following a nonjury trial, Supreme Court found defendants liable to plaintiffs in the amountof $100,000, plus interest, on a mortgage note executed in favor of James Sherwood but laterassigned to plaintiffs. On appeal, defendants argue that there was no proof of their underlyingdebt to Sherwood, no consideration for the subject note and no valid assignment of it. We affirm.
"When called upon to review a court's verdict following a nonjury trial, we independentlyreview the weight of the evidence and may grant the judgment warranted by the record, whileaccording due deference to the trial judge's factual findings particularly where . . .they rest largely upon credibility assessments" (Chase Manhattan Bank v Douglas, 61 AD3d 1135, 1136 [2009][internal quotation marks and citation omitted]). Upon our review of the evidence at trial, weconclude that Supreme Court's factual findings comport with a fair and reasonable interpretationof it. We therefore decline to disturb the judgment in favor of plaintiffs.
Testimony established that Sherwood and defendants Anthony J. Brock and Marie Brockwere business associates between 1994 and 2000 during which time Sherwood loaned themmoney on numerous occasions pertaining to the operation of their local marina. According [*2]to Sherwood's trial testimony, this amount equaled $100,292 as ofNovember 20, 2000. The evidence further established that, on December 4, 2000, Marie Brockexecuted a mortgage note on behalf of herself, her husband (pursuant to a valid power ofattorney) and the corporate entity of which they were both officers, defendant Shady HarborMarina, Inc., in favor of Sherwood.[FN*]The mortgage note itself recites that it was "for value received." In addition, Sherwood testifiedthat the "note was given to [him] to secure the monies that were due to [him] from the Brocks"and that the marina was pledged as collateral. In light of this documentary evidence andSherwood's testimony, which was credited by Supreme Court, we reject defendants' claim thatthe note is unenforceable for lack of consideration (see UCC 3-408; Friends Lbr. vCornell Dev. Corp., 243 AD2d 886, 887 [1997]; see also Wujin Nanxiashu Secant Factory v Ti-Well Intl. Corp., 14AD3d 352, 353 [2005]; Perlstein v Kullberg Amato Picacone/ABP, 158 AD2d 251,252 [1990]; Cruz v Winitt, 17 Misc 3d 134[A], 2007 NY Slip Op 52202[U] [2007]).
Furthermore, according to uncontradicted testimony at trial and documentary evidenceadmitted into evidence, Sherwood assigned the note to plaintiffs in May 2004 to secure his ownpast debts. To the extent that defendants challenge the validity of this assignment for lack ofconsideration, we note that it was in writing and signed by Sherwood. Therefore, enforceabilityof the assignment did not require a showing of consideration (see General ObligationsLaw § 5-1107; Whalen v Gerzof, 206 AD2d 688, 691 [1994], lv denied 84NY2d 809 [1994]).
Finding no merit to any other argument raised by defendants, we affirm the judgmentawarding plaintiffs the balance due under the note.
Peters, J.P., Spain, Lahtinen and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed, with costs.
Footnote *: The marina was sold in 2006and a portion of the proceeds was deposited with the Greene County Clerk pending a resolutionof this action.