Ng v. Candelas

Harry Ng, Appellant, against Hector Candelas, Respondent. Stephen David Fink, Esq., for appellant. The Law Offices of Perry Ian Tischler, P.C., for respondent (no brief filed). Appeal from an order of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered September 16, 2015. The order granted defendant's motion for summary judgment dismissing the complaint. ORDERED that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is denied. Plaintiff commenced this action to recover the principal sum of $10,000 based upon defendant's failure to repay a loan. Defendant interposed an answer which contained several affirmative defenses but did not assert a statute of frauds defense. Defendant moved for summary dismissing the complaint on the grounds, among other things, that the action is barred by the statute of frauds and that plaintiff did not plead or prove the essential elements of the loan. Plaintiff opposed the motion, arguing that he had given defendant a $10,000 check on which he had written, in the memo section, that the money was being given as a loan and that defendant had, in fact, acknowledged the loan since he had repaid $200 of it. The Civil Court granted defendant's motion solely on the ground that the action was barred by the statute of frauds. Plaintiff appeals, arguing that the court should not have granted defendant's motion based on the statute of frauds since defendant had waived this defense. The Civil Court erred in granting defendant's motion for summary judgment dismissing the complaint on the ground that it was barred by the statute of frauds since defendant had waived the affirmative defense of the statute of frauds by failing to assert it either in his answer to the complaint or in a pre-answer motion to dismiss the complaint (see CPLR 3211 [a] [5]; [e]; 23/23 Communications Corp. v General Motors Corp., 257 AD2d 367 [1999]; Con-Solid Contr. v Litwak Dev. Corp., 236 AD2d 437 [1997]; see also CPLR 3018 [b]). The other grounds asserted in support of defendant's summary judgment motion are without merit. Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied. Weston, J.P., Pesce and Aliotta, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: April 07, 2017