| Schaffe v SimmsParris |
| 2011 NY Slip Op 01824 [82 AD3d 867] |
| March 8, 2011 |
| Appellate Division, Second Department |
| Paulette Schaffe, Respondent, v Michelle SimmsParris etal., Appellants. |
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In an action to recover damages for breach of contract and fraud, the defendants appeal froman order of the Supreme Court, Kings County (Vaughan, J.), entered December 30, 2009, whichgranted the plaintiff's motion for summary judgment.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motion forsummary judgment is denied.
On April 22, 2008, the plaintiff tendered a $55,000 check made payable to the defendant lawfirm, SimmsParris Maldonado Tehauno LLP (hereinafter SPMT). On the same date, thedefendants tendered an allegedly undated $55,000 check to the plaintiff. This check was drawnon a SPMT bank account and marked "payment" in the memo notation portion of the check. Theplaintiff alleges that the money she tendered was a loan which was due to be repaid on or beforeJune 22, 2008. It is undisputed that the SPMT check to the plaintiff was subsequently dishonoredfor insufficient funds by the drawee bank. The defendants deny that any loan was made. Rather,they contend that the plaintiff retained SPMT to perform legal services on her behalf and forFMC Development LLC (hereinafter FMC), a corporation of which she was part owner.
The defendants allege that the $55,000 tendered by the plaintiff was an advance payment oflegal fees, and that the check which was given to the plaintiff was intended as repayment of theadvance, to be deposited only after SPMT had received payment for its fees from FMC. Thedefendants contend that they never received such payment from FMC and that the plaintifffraudulently altered the SPMT check by inserting a date of July 2, 2008, and then deposited thecheck.
In September 2008 the plaintiff commenced this action, asserting a cause of action to recoverdamages for breach of contract and one sounding in fraud. The Supreme Court granted theplaintiff's motion for summary judgment without explanation.
For purposes of summary judgment, the opposing party's version of the facts must beaccepted and viewed in the a light most favorable to them (see Rizk v Cohen, 73 NY2d98 [1989]; Jablonski v Rapalje, 14AD3d 484 [2005]).[*2]
Here, the plaintiff did not establish her prima facieentitlement to judgment as a matter of law on the cause of action alleging breach of contract.Although the plaintiff alleges that she loaned $55,000 to SPMT, there is nothing to show that theparties entered into such an agreement or, indeed, any agreement which could serve as theunderlying contract which the plaintiff claims was breached. Even the check which the plaintiffwrote to SPMT contains no notation that it was a loan, nor does it otherwise indicate its purpose.Moreover, other than the disputed allegations of the plaintiff, there is also no evidence that therewas any meeting of the minds regarding the terms of the alleged loan (see e.g. Central Fed.Sav. v National Westminster Bank, U.S.A., 176 AD2d 131 [1991]; see also JosephMartin, Jr., Delicatessen v Schumacher, 52 NY2d 105 [1981]). It is axiomatic that "[w]ithout[an] agreement . . . there can be no contract [and] [w]ithout a contract there can beno breach of the agreement" (Franklin v Carpinello Oil Co., 84 AD2d 613, 613 [1981];see Platt v Portnoy, 220 AD2d 652 [1995]). Consequently, in the absence of proof thatthere was an agreement between the parties concerning an alleged loan, the plaintiff has failed toprove her entitlement to judgment as a matter of law on the cause of action alleging breach ofcontract (see generally Zuckerman v City of New York, 49 NY2d 557 [1980]).
The plaintiff also failed to prove her prima facie entitlement to judgment as a matter of lawon the cause of action sounding in fraud (see Small v Lorillard Tobacco Co., 94 NY2d 43[1999]; Nationscredit Fin. Servs. Corp.v Turcios, 55 AD3d 806 [2008]).
Accordingly the plaintiff's motion for summary judgment should have been denied. In lightof our determination, it is unnecessary to reach the defendants' remaining contentions. Prudenti,P.J., Eng, Belen and Sgroi, JJ., concur.