Plaintiff commenced this action by filing a Summons and Complaint on May 7, 2008. Plaintiff sued for the return of $180,000.00 he loaned to the Defendants. Defendant Sauers filed an answer denying each of the allegations, except that he repaid Plaintiff $1,000.00. On June 16, 2008, Defendant Mineo repaid $90,000.00 to Plaintiff. Plaintiff executed a Stipulation of Settlement and Mutual Release wherein he dismissed all claims against Mineo and T & M Quality Glass Corp., excluding Defendant Sauers. In March 2011, the action was transferred, pursuant to NY Civ Pract. Law & Rules §325(d), to this Court for trial without a jury. A one day trial was conducted. [*2]

Plaintiff's wife first testified about knowing Defendant Sauers. She was present the night that Defendant came to her house with Michael Mineo to meet with her husband. She explained that he approached her husband to borrow $180,000.00 to buy an existing business and a building. Her husband worked with Sauers occasionally at Sauers' auto glass store. She pleaded with her husband to have Sauers sign a written agreement, but her husband "scoffed" at her and decided against it. The wife then explained why several checks were written by her husband to Sauers. Her husband was preparing to write one check to Sauers when Sauers asked for four checks written on four different dates. Sauers told Plaintiff and the wife that he did not want the lending company to see a $180,000.00 deposit. Sauers apparently planned to refinance the business after its purchase so that he could repay the Plaintiff. She explained that Mineo repaid her husband $90,000.00, and that Sauers has only repaid $1,000.00.

Plaintiff's next witness was Minichello. She was married to Defendant Sauers, and divorced in 2010. She has known the Plaintiff for over 25 years. She remembers meeting Plaintiff at a diner with her ex-husband to discuss the money. According to her story, Sauers knows he owes Plaintiff the money. She said Sauers offered to repay Plaintiff $1,000.00 per month. Never did Sauers indicate to her or Plaintiff that the money was a corporate loan.

The Plaintiff testified that he knew Sauers through Sauers' father-in-law. He also knew Sauers through Sauers' own father. Sauers' father owned Amityville Auto Glass since 1950, where Plaintiff would "hang out" and do little jobs. He met with Sauers and Mineo in 2007 to discuss their plans to purchase another auto glass business. Plaintiff explained that Sauers wanted the loan in the bank account for four months, after which he would re-mortgage the businesses and repay the Plaintiff. Plaintiff said he was never told that the money was being loaned to a corporation. As he started to write the check, Sauers asked that the loan be divided into four different checks. The checks were dispensed as follows:

TO: Nassau Auto GlassMay 14, 2007$52,000.00

TO: Nassau Auto GlassMay 17, 2007$43,000.00

TO: Nassau Auto GlassMay 21, 2007$40,000.00

TO: Nassau Auto GlassMay 25, 2007$45,000.00

The May 14th and 25th checks were endorsed by T & M Quality Glass Corp. The May 17th and 21st checks were endorsed personally by Sauers. Plaintiff acknowledged the meeting at the diner with Sauers and his then wife. Sauers promised to repay Plaintiff. To date, Plaintiff has only received $1,000.00 from Sauers.

Defendant Sauers testified last. Since the age of 13, he has been involved in the auto glass business through his father. He took over the father's business in 1999. He acknowledged that Plaintiff frequented the father's business, and that Plaintiff had mentioned to Sauers that he would be interested in lending money if Sauers had an investment. In December 2006, Sauers and Mineo created T & M Quality Glass Corp. which then assumed the name Nassau Glass. They saw a property in Nassau that had 3 buildings, two of which they intended to purchase. Sauers and Mineo met Plaintiff at his house. He acknowledged that he asked for four checks, two of them were deposited to Nassau Auto. Sauers explained that the money was never a personal loan. Sauers described Plaintiff as an honest man who trusted Sauers sufficiently not to ask for a note or mortgage for the loan. He then explained how he [*3]intended to re-mortgage the property, but the money in the bank went to other expenses. The money borrowed from Plaintiff was never used to buy the building. In December 2007 he realized that they were not buying the building. T & M Quality Glass Corp. ultimately dissolved.

In a matter such as this, it is the province and indeed the obligation of the trial court to assess and determine matters of credibility. Morgan v McCaffrey, 14 AD3d 670, 789 N.Y.S.2d 274 (2d Dep't 2005); Matter of Liccione v Michael A., 65 NY2d 826, 493 N.Y.S.2d 121 (1985). Here, the burden is upon the plaintiff to plead and prove its direct case by a fair preponderance of the credible, relevant and material evidence with the same burden imposed upon the Defendant respecting his claim against the Plaintiff. Prince-Richardson on Evidence, §3-210; Torem v Central Avenue Rest, 133 AD2d 25, 518 N.Y.S.2d 620 (1st Dep't 1987). Credible evidence has been defined as evidence that proceeds from a credible source and reasonably tends to support the proposition for whit it is offered and is evidentiary in nature and not merely a conclusion of law, nor mere conjecture. Dille v Kelly, 31 Misc 3d 1232(A) (NY Supreme, NY County, 2011).

Based upon the Court's observations of Thomas Sauers' demeanor, as well as the manner and unsubstantiated nature of his testimony, it does not find him to be credible. One might even question whether a fraud was perpetrated on Plaintiff because the loan was actually used to cover business expenses instead of being used for the mortgage process as originally described by Defendant.

The first issue is whether the alleged oral contract falls outside the purview of the Statute of Frauds. If the Statute of Frauds does apply then there is no enforceable contract. General Obligations Law 5-701, the Statute of Frauds states, in pertinent part, that

Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking... by its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime.

An alleged oral agreement to pay money in installments is an "agreement that is not to be performed within one year," subject to the Statute of Frauds, when the installment payment obligation exceeds one year. 72 Am.Jur.2d, §24, Statute of Frauds, July 2010. However, where the time of payment under the agreement is indefinite or dependent upon a contingency that may happen within one year, the agreement does not fall within the "agreement not to be performed within one year" provision. Id. The Court of Appeals has interpreted this section as barring those agreements that "have no possibility in fact and law of full performance within one year." ABKCO Music v Montague, slip opinion, (SupCt, NYCounty, 2008). As long as the agreement may be "fairly and reasonably interpreted" such that it may be performed within a year, the Statute of Frauds will not act as a bar however unexpected, unlikely, or even improbable that such performance will occur during that time frame. Id. Open ended agreements with no set time for repayment do not violate the Statute of Frauds. Constantini v Bimco Industries, 125 AD2d 531, 510 N.Y.S.2d 136 (2d Dep't, 1986).

The Statute of Frauds is not a bar to this action. The facts revealed that the Defendant expected to refinance the properties within a few months, and Plaintiff expected repayment at that time. That [*4]aside, fundamental contract principles apply in this case. The issue is whether Defendant, presumed an agent of the corporation, assumed personal liability for repayment of the loan.

When an agent acts on behalf of a disclosed principal, the agent will not be personally liable for a breach of contract unless there is clear and explicit evidence of the agent's intention to be personally liable. Weinreb v Stinchfield, 19 AD3d 482, 797 N.Y.S.2d 521 (2d Dep't 2005). An agent is not personally bound, in the absence of clear and explicit evidence of an intent to be bound personally, even though he signed a contract without any language limiting his signature. Id. .At first blush, because Plaintiff's checks were made out to the corporation, and the checks deposited into the corporate account, it would appear that repayment of the loan was the corporation's responsibility. However, Defendant did not refute the testimony by Plaintiff, and Defendant's former wife, that Defendant acknowledged that the debt was his personal responsibility, and that he agreed to pay the Plaintiff $1,000.00 monthly. Defendant's payment of the first $1,000.00 ratified the understanding that the debt was Defendant's personal liability. These facts clearly evidence Defendant's intent to be bound personally for the debt.

Based upon the above, it is hereby

ADJUDGED that repayment of the balance of the loan made by Plaintiff to Defendant's is the personal liability of Defendant THOMAS SAUERS; and it is further

ADJUDGED that there is a balance of the loaned principle due and owing Plaintiff in the amount of EIGHTY NINE THOUSAND DOLLARS ($89,000.00) ; and it is further

ADJUDGED that judgment be entered in favor of Plaintiff ROBERT CROZIER and against Defendant THOMAS SAUERS in the amount of EIGHTY NINE THOUSAND DOLLARS ($89,000.00), together with interest from July 1, 2008.

This constitutes the decision and order of the Court.

Submit judgment.

ENTER

_____________________________________

Judge