The following papers numbered 1 to 6 read herein:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-3

Opposing Affidavits (Affirmations)4,5

Reply Affidavits (Affirmations)6

Affidavit (Affirmation)[*2]

Other Papers

Upon the foregoing papers, defendant Feng Mao Tan (Tan) moves for an order pursuant to CPLR 3212 dismissing plaintiffs Wai Kit Yan (Yan) and Susan Chan's complaint as asserted against Tan and granting judgment in her favor on her counterclaim seeking restitution of $20,000 plus interest from April 12, 2007.

Plaintiff Yan affirms that in 1997 he entered into a business partnership with Ren Jie Zhu (Zhu) in an electronics store in Queens. It appears that Zhu and defendant Feng Mao Tan (Tan) lived together in Brooklyn, and were the parents of two children. In or about February 2005, Zhu borrowed $150,000.00 from Yan allegedly related to an investment opportunity in the Dominican Republic involving a hotel owned by Tan's family. Yan contends that the loan was at an annual interest rate of 12 percent for a period of two years.

Zhu was hospitalized in January 2007 with liver cancer. Yan contends that at that time Zhu told Yan that no matter what happened Tan would repay the loan and he further contends that Tan also told him she would repay the loan in full. On March 13, 2007, Zhu died of liver cancer. Yan contends that on April 12, 2007, Tan gave him a check in the amount of $20,000 as an initial payment of the debt and that she signed a document confirming her actions on that date. Yan maintains that Tan has refused to repay the funds she owes him based upon the document she signed on April 12, 2007.

Tan contends that Yan and two other men came to her home, a few days after Zhu had passed away and demanded the money that Yan had loaned to Zhu. She claims that they came back several times and acted menacingly toward her in their demand for payment. She claims that she was so intimidated that she wrote Yan a check for $20,000.00 and that he told her he would sign a receipt and that she should sign it as well and that he would not bother her anymore. When Yan demanded more money, Tan contends that she told him she would not pay him any money that she did not owe him.

Plaintiffs commenced the instant lawsuit alleging breach of contract, unjust enrichment, money had and received and fraud on April 21, 2008. Tan answered and asserted counterclaims on June 5, 2008. Plaintiffs were granted leave and filed a supplemental summons and amended complaint on May 17, 2011 and Tan served an answer and counterclaims on May 17, 2011.

Tan moves for summary judgment dismissing plaintiffs' complaint as asserted against her. Tan argues that the breach of contract complaint should be dismissed as there is no privity of contract between plaintiffs and Tan. In support of this argument, she points to the promissory note that was entered into between Yan and Zhu on February 3, 2005, for $150,000.00 for two years at a 12 percent interest rate. Tan argues that she is not a party to the note, she is not a signatory to said note, nor has she agreed to be a guarantor of the note, thus there is no privity of contract between plaintiffs and Tan and, as such, the claim should be dismissed.

Tan contends that the action should also be dismissed as against her since the plaintiffs should have commenced the action against Zhu's estate noting that she and Zhu were not married [*3]and thus no action for a debt of Zhu's may be maintained against her.

Next, Tan argues that plaintiffs' allegations with respect to a partnership involving decedent and Tan are barred by the Dead Man's Statute, Parol Evidence rule and the Statute of Frauds. She points out that there is absolutely no evidence in the record that there was any partnership formed between the decedent Zhu and Tan and plaintiffs' allegations of representations that decedent purportedly told them are barred by the Dead Man's Statute and parol evidence rule. Tan argues that the Statute of Frauds requires that the promise to answer for the debt of another must be in writing to be enforceable.

Tan contends that the receipt that she signed is not a promise to pay for the debt of another but, rather, that she was induced to sign it under duress because she wanted Yan and his men to leave her alone because he told her that once she signed it she would be left alone. Moreover, she contends that this receipt cannot be used as evidence of a contract between Yan and Tan inasmuch as there was no consideration.

Plaintiffs oppose Tan's motion on several grounds. First they argue that res judicata requires that the instant motion be dismissed inasmuch as Tan previously moved for the same relief on the identical papers and said motion was denied in a July 10, 2009 order issued by the Honorable Arthur M. Schack. Judge Schack found that there were triable issues of fact as to whether Ms. Tan is a party to the subject note and loan and whether Ms. Tan signed the 4/12/07 receipt under duress and whether or not it relates to any financial obligation of Ms. Tan." Plaintiffs maintain that even if the court finds that res judicata does not apply, summary judgment is still not warranted as there are material issues of fact in dispute in this matter. Specifically, plaintiffs submit the affidavit of Yan who affirms that Tan was aware of the loan he made to Zhu and was a full participant in the underlying business transaction and claims that she personally assured him that she would repay the loan. He further claims that Tan and Yan were married in an undocumented religious ceremony. However, the court notes it finds no merit to this assertion inasmuch as the documents submitted, namely Zhu's death certificate, establish that he was not married at the time of his death.

Yan contends that he never acted menacingly toward Tan or threatened her but testified that he was at her home with other individuals who had loaned Zhu money as well. Yan points out that the document Tan signed on April 17, 2007 reads as follows: "Received from Fen Mao Tan, residing at 466 62nd Street, the sum of $20,000 on 4/12, 2007 as partial repayment on the loan $150,000." He claims that there was no one else with him and Tan when she signed it and he contends that he explained to her in Chinese that it means that she is giving him a check for $20,000 towards the payment of $150,000 that Zhu owed her and she said okay.

Finally, plaintiffs point out that Tan has failed to employ the correct caption and has failed to supply a complete set of pleadings as required by CPLR 3212 (b). Initially, the court notes that "courts have held that captions should be liberally construed and defects in form disregarded unless demonstratively prejudicial or timely objection has been made" (Tilden Dev. Corp. v Nicaj, 49 AD3d 629, 630 [2008]; First Wis. Trust Co. v Hakimian, 237 AD2d 249 [1997].

In reply, Tan argues that at the time that Judge Schack's decision was rendered there was a triable issue of fact but contends that now, all discovery is completed and establishes that Tan [*4]was not a party to the note. In support of this position, Tan points to that portion of Yan's deposition testimony in which he testified that the promissory note was entered into between Yan and Zhu and that Yan never asked Tan to be a personal guarantor of the promissory note. Tan also points to Yan's testimony that he, and two other individuals, both named Kenny went to see Tan three or four days after Zhu's funeral to get her to pay back money that Zhu owed to all three men. He further testified that about three weeks later these three gentleman again returned to see Tan to request that she pay back the money that Zhu owed. Yan testified that he returned to Tan's home a third time upon learning that she had collected a life insurance benefit related to Zhu's death. It was at this meeting on April 12, 2007 that Tan gave Yan a check for $20,000 and he had her sign a paper which was written in English. Tan contends that Yan told her that he would not bother her anymore if she gave him this money.

The complaint contains causes of action for breach of a loan agreement; breach of contract, unjust enrichment, money had and received, and fraud. To sustain a breach of contract cause of action in New York, plaintiffs must allege facts showing each of the following elements: (1) the existence of a contract, (2) due performance of the contract by plaintiff, (3) breach of the contract by defendant, and (4) damages resulting from the breach (see Elisa Dreier Reporting Corp. v Global Naps Networks, Inc., 84 AD3d 122, 127 [2011]; JP Morgan Chase v J.H. Elec. of NY, Inc., 69 AD3d 802 [2010]; Kraus v Visa Int'l Serv. Ass'n, 304 AD2d 408 [ 2003;] Furia v Furia, 116 AD2d 694, 695 [1986]). "Liability for breach of contract does not lie absent proof of a contractual relationship or privity between the parties" (CDJ Bldrs. Corp. v Hudson Group Constr. Corp., 67 AD3d 720, 722 [2009]; Hamlet at Willow Cr. Dev. Co., LLC v Northeast Land Dev. Corp., 64 AD3d 85, 104 [2009]). Here, Tan correctly argues that there is no privity of contract between Yan and Tan and the record reveals that the contract to borrow the $150,000 was entered into solely by Yan and Zhu and Tan was not a party to said contract.

Plaintiff Yan asserts that Tan has assumed the liability for repayment of the loan testifying that decedent "pointed at Ms. Tan" and said "don't worry about it Ricky . . . We know about it. We are on top of it." In addition, plaintiff affirms that prior to the death of decedent, Tan assured him that she would be personally responsible for its repayment no matter what happened. An oral promise to guarantee the debt of another is barred by the statute of frauds (see General Obligations Law § 5-701 [a] [2]; Perini v Sabatelli, 52 AD3d 588 [2008]). However, "an exception to this rule is where the plaintiff can prove that the oral promise was supported by new consideration benefitting the promisor and that the promisor has become primarily liable on the debt" (CDJ Bldrs. Corp. v Hudson Group Constr. Corp., 67 AD3d 720, 722 [2009]; see Martin Roofing v Goldstein, 60 NY2d 262, 265 [1983], cert denied 466 US 905 [1984]; Concordia Gen. Contr. v Peltz, 11 AD3d 502 [2004]; Bart & Schwartz v Teller, 228 AD2d 630, 631 [1996]). Here, Yan has not proffered any evidence demonstrating that, by making the purported oral promise, Tan received any new consideration or that she became primarily responsible for decedent's debt.

Inasmuch as there is no privity between Tan and Yan with regard to the contract to borrow the $150,000 and any alleged oral promise to repay is barred by the Statue of Frauds, that branch of Tan's motion seeking summary judgment dismissing plaintiff's breach of contract claim is granted and said claim is dismissed as asserted against Tan. Importantly, the court notes that plaintiff has failed to demonstrate that Tan acted as a personal guarantor of the loan [*5]

Yan also pleads an action sounding in unjust enrichment. Unjust enrichment is classified as a "quasi-contract claim" and invokes "an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties" (Georgia Malone & Co., Inc. v Rieder, 19 NY3d 511, 516 (2012) [internal quotation marks and citations omitted]). The elements of an unjust enrichment claim are that "(1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered" (A.T.A. Construction Corp. v Mazl Bldg. LLC, 2013 NY Misc. LEXIS 4140 (NY Sup. Ct. Sept. 13, 2013). Importantly, "where a plaintiff asserts a claim for unjust enrichment, the plaintiff must allege a relationship with the defendant which, while not necessarily one of privity, is not so attenuated as to make the plaintiff's reliance on the defendant's representations unreasonable" (Sperry v Crompton Corp., 8 NY3d 204, 215 [2007]). The Court of Appeals found that in Sperry and in Mandarin Trading Ltd. v Wildenstein (16 NY3d 173, 182 [2011]), the relationship was too attenuated "because they simply had no dealings with each other" (Georgia Malone & Co., Inc. v Rieder, 19 NY3d 511, 517-518 [2012]. Similarly, in the instant case, it is undisputed that Yan and Tan had no dealings with each other in relation to the contract that decedent and Yan had entered into. Moreover, Yan has failed to demonstrate that Tan was unjustly enriched by the $150,000 loan. There is simply nothing in the record before this court that shows that Tan in any way personally benefitted from this loan. Accordingly, that branch of plaintiffs' motion seeking dismissal of plaintiff's unjust enrichment claim is granted.

Yan's complaint also contains a cause of action for money had and received in which he alleges that on or about February 3, 2005, Tan received $150,000.00 belonging to plaintiffs and benefitted from the receipt of this sum of money. "Although a cause of action for money had and received is an action based on an implied contract, this designation is "a misnomer because it is not an action founded on contract at all; it is an obligation which the law creates in the absence of agreement when one party possesses money that in equity and good conscience he ought not to retain and that belongs to another" (Regional Economic Community Action Program, Inc. v Enlarged City School Dist. of Middletown, 18 NY3d 474, 479 [2012]; Parsa v State of New York, 64 NY2d 143, 148 [1984] citing Miller v Schloss, 218 NY 400, 406-407 [1916]). The court finds that Tan has affirmed that she did not borrow any money from the plaintiffs and did not even know about it until after decedent had passed away. Plaintiff has failed to demonstrate that Tan ever received the $150,000 that was loaned solely to Zhu, or that she in any way benefitted from the loan made to decedent. As such, that branch of Tan's motion seeking summary judgment dismissing plaintiff's cause of action for money had and received is granted and said claim is dismissed as asserted against Tan.

Finally plaintiff's complaint contained two separate fraud allegations. The first alleges that Tan falsely represented to Yan "Don't worry about your money. I will pay you back." Yan alleges that Tan made this false representation to induce plaintiffs to refrain from pursuing claims against decedent's estate or to otherwise seek to enforce their claim against Zhu's assets, which he alleges had been fraudulently transferred in anticipation of Zhu's death to avoid payments to his legitimate creditors.

The second fraud claim alleges that on April 17, 2007, Tan signed an agreement and made a payment of $20,000 to be used in partial satisfaction of the February 3, 2005, loan of [*6]$150,000 and that she told him that this was an "initial payment" and that the balance of the loan would be paid "as soon as (she) can." Plaintiff again alleges that this representation was made to induce plaintiff to refrain from pursuing claims against decedent's estate or to otherwise seek to enforce their claims against decedent's assets. The elements of a fraud claim are that (1) the defendant made a false representation of fact, (2) the defendant had knowledge of the falsity, (3) the misrepresentation was made in order to induce the plaintiff's reliance, (4) there was justifiable reliance on the part of the plaintiff, and (5) the plaintiff was injured by the reliance (see Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553 [2009]; Orchid Constr. Corp. v Gottbetter, 89 AD3d 708 [2011]; Selechnik v Law Off. of Howard R. Birnbach, 82 AD3d 1077 [2011]). Here, the court finds that Tan is entitled to summary judgment dismissing plaintiffs' fraud claims inasmuch as the record reveals that

even if Tan made the alleged remarks there was no reliance by plaintiffs causing injury. Plaintiffs contend that Tan's false representations were made to induce plaintiffs to refrain from pursing their claims but, inasmuch as plaintiffs commenced this lawsuit in 2008, it is evident that they were not deterred from commencing this litigation in a timely fashion. Therefore, that branch of Tan's motion seeking summary judgment dismissing plaintiffs' fraud claims is granted.

Tan also moves for summary judgment in her favor on her counterclaim alleging unjust enrichment. Tan contends that Yan and some other men came to her home and threatened and intimidated her into writing Yan a check for $20,000.00, and that Yan had no legal right to this money and has thus been, unjustly enriched. She claims that Yan told her that if she gave him this money and signed a receipt he would not bother her anymore. Tan seeks the restitution of the $20,000.00. However, in opposition, Yan contends that Tan signed an agreement that this $20,000.00 was a partial payment on the $150,000.00 loan and only refused to continue making further payments after consulting an attorney.

"A party is under an obligation to read a document before he or she signs it, and a party cannot generally avoid the effect of a [document] on the ground that he or she did not read it or know its contents" (Martino v Kaschak, 208 AD2d 698, 698 [1994]; see Lavi v Hamedani, 234 AD2d 428 [1996]; Humble Oil & Ref. Co. v Jaybert Esso Serv. Sta., 30 AD2d 952, 294 NYS2d 190 [1968]). However, "there are situations where an instrument will be deemed void because the signer was unaware of the nature of the instrument he or she was signing" (Green Point Sav. Bank v Placid Life, Inc., 272 AD2d 441, 441 [2000]), such as where "the signer is illiterate, or blind, or ignorant of the alien language of the writing, and the contents thereof are misread or misrepresented to him by the other party, or even by a stranger" (Cash v Titan Fin. Servs., Inc., 58 AD3d 785, 788 [2009] quoting Pimpinello v Swift & Co., 253 NY 159, 164 [1930]).

Accordingly, this branch of Tan's motion is denied inasmuch as the court finds that questions of fact exists regarding whether or not Tan understood what the receipt she was signing meant. She affirms that she believed that by giving Yan this $20,000 he would stop harassing her for the debt that Zhu had incurred. Yan testified that he told Tan in Chinese what the words that were written in English on the receipt meant. He testified that he told her that "the check I'm getting from her is towards the loan you guys got it from me and that $20,000 is part of the land and she said okay." As Yan and Tan's accounts of the events surrounding the writing of the check in the amount of $20,000 are in sharp contrast to one another, the court finds that a question of fact exists that precludes a grant of summary judgment in Tan's favor on the [*7]counterclaim.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C.