| Green Apple Mgt. Corp. v Aronis |
| 2012 NY Slip Op 03406 [95 AD3d 826] |
| May 1, 2012 |
| Appellate Division, Second Department |
| Green Apple Management Corp., Appellant, v John Aroniset al., Respondents. |
—[*1] Giaimo Associates, LLP, Kew Gardens, N.Y. (Joseph O. Giaimo of counsel), for respondentDimitrios Tsiavos.
In an action to recover on a promissory note, the plaintiff appeals from a judgment of theSupreme Court, Queens County (Risi, J.H.O.), entered August 3, 2011, which, upon a decision ofthe same court dated August 3, 2009, made after a nonjury trial, is in favor of the defendants andagainst it, dismissing the complaint.
Ordered that the judgment is reversed, on the law and the facts, with costs, the complaint isreinstated, and the matter is remitted to the Supreme Court, Queens County, for furtherproceedings consistent herewith.
"In reviewing a determination made after a nonjury trial, this Court's power is as broad asthat of the trial court, and it may render the judgment it finds warranted by the facts, taking intoaccount that in a close case the trial court had the advantage of seeing and hearing the witnesses"(BRK Props., Inc. v Wagner ZivPlumbing & Heating Corp., 89 AD3d 883, 884 [2011]; see Northern WestchesterProfessional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]).
The plaintiff commenced this action to recover on a promissory note executed by thedefendants John Aronis and Dimitrios Tsiavos. After a nonjury trial, the Supreme Courtdismissed the action on the ground that there was a lack of consideration for the note. This waserroneous. The plaintiff met its initial burden of demonstrating entitlement to recovery on thenote by submitting proof of the execution of the note and the defendants' default in makingpayments pursuant to the note (seeCarlin v Jemal, 68 AD3d 655, 656 [2009]; Levien v Allen, 52 AD3d 578 [2008]; Anand v Wilson, 32 AD3d 808,809 [2006]). With respect to the defense of lack of consideration, the defendants testified thatthey signed the note because the plaintiff's principal said that if they did not do so, he would put acompany called Yellow Management Corp. (hereinafter Yellow Management) out of business bysuspending insurance policies issued by Omega EMS Broker, Inc. (hereinafter Omega EMS),another company owned by the plaintiff's principal, based on the nonpayment of insurancepremiums owed to Omega EMS. Aronis testified that he and Tsiavos were the co-owners ofYellow Management, while Tsiavos testified that Aronis was the sole owner of YellowManagement, and that Tsiavos was [*2]only an employee. Eitherway, the plaintiff's principal's promise to forbear putting Yellow Management out of business bycanceling the insurance policies would constitute a benefit to both Aronis and Tsiavos (seeWeiner v McGraw-Hill, Inc., 57 NY2d 458, 464 [1982]; Holt v Feigenbaum, 52NY2d 291, 299 [1981]; Anand v Wilson, 32 AD3d at 809).
In light of its determination, the Supreme Court did not make any determination with respectto the defendants' other defenses, including their defenses that the debt reflected in thepromissory note was satisfied and that they signed the note under duress and as a result offraudulent inducement. Under the circumstances of this case, the matter must be remitted to theSupreme Court, Queens County, for a determination of the validity of these defenses. Mastro,A.P.J., Hall, Lott and Sgroi, JJ., concur.