Plaintiffs, Edward A. Belanger, Sr., and Edward A. Belanger, Jr. (hereinafter Plaintiffs), move for Summary Judgment pursuant to CPLR § 3212, based on Defendant, Joseph Criscuolo's (hereinafter Defendant) default on payments due pursuant to Promissory Notes executed on December 12, 2007 and May 12, 2008. It is the contention of the Plaintiffs that the Defendant has defaulted under the Notes by failing to make payments, upon demand by Plaintiffs. Plaintiffs seek judgment in the amount of the Notes, $120,000, plus applicable interest. Additionally, the Plaintiffs are seeking dismissal of Defendant's counterclaims and affirmative defenses under CPLR § 3211 on the grounds that the Defendant's allegations are asserted against the wrong party.

Defendant opposes the motion for summary judgment on several grounds asserting that 1) [*2]the Notes were part of a larger oral contract for the development of real property known as "Windstone Crossing," which the Plaintiffs allegedly breached; 2) Plaintiffs' complaint is barred by the equitable doctrines of Waiver, Estoppel, Laches and Unclean Hands; 3) Plaintiffs' damages are a result of Plaintiffs own conduct, negligent acts and omissions; 4) the Notes are defective and therefore null and void because they lack a date or time when they are due; and 5) Plaintiffs have been unjustly enriched. Additionally, Defendant alleges that its counterclaims are valid because plaintiff is the managing member of Pilch Acres Holding LLC, the limited liability company that owns Windstone Crossing, and therefore has received the benefit of Defendant's work.

It is well settled that to obtain summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact. Goldberger v. Brick & Ballerstein, Inc., 217 AD2d 682, 629 N.Y.S.2d 813 (2d Dept. 1995). The burden then shifts to the party opposing the motion to come forward with proof, in admissible form, demonstrating there are issues of material fact, which preclude the granting of summary judgment. Zayas v. Half Hollow Hills Cent. School Dist., 226 AD2d 713, 641 N.Y.S.2d 701 (2d Dept. 1996).

The Plaintiffs have established a prima facie case, which absent evidence of a material issue of fact would entitle them to judgment as a matter of law.

"To establish prima facie entitlement to judgment as a matter of law with respect to a promissory note, a plaintiff must show the existence of a promissory note, executed by the defendant, containing an unequivocal and unconditional obligation to repay, and the failure by the defendant to pay in accordance with the note's terms."

Lugli v. Johnston, 78 AD3d 1133, 1135, 912 N.Y.S.2d 108 (2d Dept. 2010) (citations omitted).

In the instant case, Plaintiffs have attached copies of the 6 promissory notes, five of the Notes are dated December 12, 2007 and the remaining one dated May 12, 2008, each in the amount of $20,000. The Notes are identical, each stating "[Joseph Criscuolo and Chuck Sanders] do hear by promise to pay back to Edward A. Belanger, Jr and Edward A. Belanger Sr . The amount of $20,000.00 either through any profits on the subdivision known as Windstone Crossing or by other any [sic] monies."Furthermore, Plaintiffs have supplied the affidavit of Edward A. Belanger, Jr., stating that Windstone Crossing was never completed and Plaintiffs sought to enforce their rights under the Notes to "any other monies" available to the Defendant. In their Opposition to Motion for Summary Judgment, the defense has asserted that the Notes are part of a larger agreement, but has not disputed the genuineness of the Notes or that Mr. Criscuolo's signature appears on them. There is no dispute that Defendant has not paid Plaintiff any money owed under the Notes.

By providing the promissory notes signed by the Defendant, as well as the affidavit asserting that the Defendant has failed to repay the loan, the Plaintiffs establish their prima facie entitlement to judgment as a matter of law. The burden now shifts to the Defendant to raise a material issue of fact. The Defendants responses will be addressed in succession. [*3]

The Defendant has alleged that the Notes were a small part of a larger oral contract. According to the Defendant, on or about December 12, 2007, Plaintiffs and Defendant entered into a joint venture to create "Windstone Crossing," a multi-home subdivision. The Defendant was to provide the work, labor and experience to construct the subdivision and the Plaintiffs were to provide the property and pay all the financial obligations. Defendant further states that the Notes were to be repaid through the profits of Windstone Crossing or "other any monies," not "any other monies" as the Plaintiffs noted in there motion, which the Defendant understood to mean funds derived through the subdivision. The Defendant asserts that it performed its requirements under the oral contract.

When interpreting a contract, "the court should arrive at a construction which will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectation will be realized." Herzfeld v. Herzfel, 50 AD3d 851, 857 N.Y.S.2d 170 (2d Dept. 2008). If terms of a written contract are clear and unambiguous, intent of the parties must be found within the four corners of the contract. Correnti v. Allstate Properties, LLC, 38 AD3d 588, 832 N.Y.S.2d 594 (2d Dept. 2007). Extrinsic evidence of the parties' intent may be considered only if the agreement is ambiguous, which is an issue of law for the courts to decide. Innophos, Inc. v. Rhodia, S.A., 10 NY3d 25, 852 N.Y.S.2d 820 (2008). A contract is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the agreement itself and there is no reasonable basis of difference of opinion. Greenfield v. Philles Records, Inc., 98 NY2d 562, 750 N.Y.S.2d 565 (2002).

The Defendant's assertion that a different meaning exists between, "other any monies" and "any other monies" is baseless and without merit. The Notes are clear on their face; they were to be paid back either from profits of the Windstone Crossing project or by other means. If, as the Defendant alleges, the Notes were only to be paid back through funds derived from Windstone Crossing then there would have been no need for mention of an additional source of recovery.

Furthermore, the Defendant has failed to provide facts sufficient to suggest that a joint venture existed. A joint venture is an agreement between two or more persons to pool their resources, property, money, effects, skill and knowledge, for a single business enterprise. See Kaufman v. Torkan, 51 AD3d 977, 859 N.Y.S.2d 253 (2d Dept. 2008). A joint venture requires among other things "a contribution by the coventurers to the joint undertaking (i.e., a combination of property, financial resources, effort, skill or knowledge)." Id. at 979, 255. The evidence fails to establish the Plaintiffs have provided a contribution to the venture.

The Tax Bill from the Iredell County Tax Collector supports the Plaintiffs' contention that the property of Windstone Crossing belongs to Pilch Acres Holding LLC, and not the Plaintiffs. Therefore, the Plaintiffs are not in a position to contribute the land to the venture, as alleged by the Defendants. While a joint venture may exist, the Plaintiffs are not a part of it in their individual capacities ^[FN1]. [*4]

Next, the Defendant alleges that the Plaintiffs' complaint is barred by the equitable doctrines of Waiver, Estopple, Equitable Estopple, Laches and Unclean Hands. The Defendant contends that this claim is about more than just money and the surrounding circumstances, specifically the oral contract and joint venture, need be considered. The court fails to find this contention supported by the record. The Notes are clear and unambiguous on their face and, as stated above, there is no evidence of a joint venture between the Plaintiffs and Defendant.

The Defendants next affirmative defense states that Plaintiffs claims should be barred because any damages were the basis of Plaintiffs' "own conduct and negligent acts and omissions." To support this defense, Defendant has pointed to a discovery request that was not responded to. Defendant surmises that because the discovery request was not responded to that evidence must exist to support its defense. However, when opposing a motion for summary judgment, the Defendant has the burden to "come forward and lay bare his proofs of evidentiary facts showing that there is a bona fide issue requiring a trial ... [He] cannot defeat this motion by general conclusory allegations which contain no specific factual references." Hanson v. Ontario Milk Producers Co-op., Inc., 58 Misc 2d 138, 294 N.Y.S.2d 936 (1968). The Defendant has failed to provide any evidence to support its allegation that Plaintiffs have acted negligently or made omissions that caused their damages.

The Defendant's next affirmative defense states, that the Promissory Notes are defective because they are not "demand notes" within the meaning of N.Y.U.C.C. 3-108 and fail to state a date or time upon which they are due, rendering them null and void. The basis for this defense is grounded in the Defendant's contention, that payments of the Notes were conditioned upon the outcome of a joint venture. The defense again asserts that the term "other any monies" was interpreted by the Defendant to mean funds derived through the subdivision of Windstone Crossing. As stated above, the defendants alleged interpretation of "other any monies" is illogical and would render the term useless. Further, as previously discussed, there is no evidence that the Plaintiffs were part of any joint venture and there is no mention of any joint venture in the language of the Notes. The language of the Notes is clear and unambiguous on its face, creating a demand note within the meaning of N.Y.U.C.C. 3-108.

The Defendant's final affirmative action alleges that all monies received were used toward the development of Windstone Crossing and as such benefited the Plaintiffs. As previously determined, the Plaintiffs are not, in their individual capacities, owners of Windstone Crossing nor has there been any evidence that they are otherwise personally involved in the Windstone Crossing project. Therefore, they have not received any such benefit.

Lastly, the Defendant's affirmative defenses also hinge on the theory that there was an oral contract between Plaintiffs and Defendant, which created a joint venture. As noted above, Pilch Acres Holding LLC and not the Plaintiffs own the land upon which Windstone Crossing was to be developed. As such the Plaintiffs were not in a position to supply the land to the joint venture as the Plaintiff has alleged. The Defendant's allegations of breach of contract have therefore been asserted against the wrong party and are hereby dismissed. [*5]

Based on the foregoing, the Defendant's counter-claims and affirmative defenses are dismissed and summary judgment is granted in favor of the plaintiff and against the defendant in amount of $120,000. No prejudgment interest is awarded since Plaintiff has not provided the Court with the date of demand.

Submit Judgment.

Dated: August 5, 2011 Riverhead, New York

EMILY PINES J. S. C.