Preview
FILED: ONONDAGA COUNTY CLERK 10/11/2022 03:43 PM INDEX NO. 008543/2020
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 10/11/2022
SUPREME COURT
STATE OF NEW YORK COUNTY OF ONONDAGA
WAYNE NORTON,
Plaintiff, Index No. 008543/2020
vs.
ATTORNEY AFFIRMATION
IN RESPONSE TO PLAINTIFF'S
MOTION FOR PARTITION AND
PARTIAL SUMMARY
JUDGMENT
ROBERT NORTON and BRUCE NORTON,
Defendants
Francesco Fabiano, under penalty of perjury, hereby affirms and shows the Court as follows:
1. I am an attorney duly authorized to practice law before this court and submit this
affirmation on behalf of the defendant Robert Norton and in response to Plaintiff's
instant motion.
2. Respectfully, Plaintiff's motion is premature since the deposition of the Plaintiff has
not yet been conducted although duly demanded and, Plaintiff's counsel has
continually represented to allow Plaintiff's deposition to go forward.
3. By way of a brief overview, the Plaintiff's discovery was submitted within 10 days of
the filing of the Note of Issue.
4. Following same and continuing thereafter, Plaintiff's counsel has consistently
represented that the taking of Plaintiff's deposition may take place post the Note of
Issue.
5. Your affiant understands that the Plaintiff has moved and relocated to South Korea,
making the taking of his deposition difficult given the time differences between the
two countries.
1 of 7
FILED: ONONDAGA COUNTY CLERK 10/11/2022 03:43 PM INDEX NO. 008543/2020
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 10/11/2022
6. However, that said, and as indicated, the Plaintiff's deposition is critical in order to
resolve the majority of the issues important to this case, particularly the accounting
and distribution of any proceeds from the sale of the 105 Yager Drive residence,
unless the parties cooperate or stipulate otherwise.
7. To date, the plaintiff has not been presented for depositions making it difficult if not
impossible to address the various dispositive issues including the accounting portion
of this case.
8. As indicated in the accompanying affidavit of Robert Norton, Plaintiff has been, for
the most part, at least until recently, residing in Texas.
9. Defendant has been attempting to purchase each of his brother's interest in the
residence.
10. Although his brother Bruce Norton has been willing, Plaintiff Wayne Norton has
rejected any such attempts and has been inconsistent with his responses.
11. Aside from the fact that this is his childhood home where he has resided the majority
of his life, Defendant Robert Norton also wanted to purchase the residence and avoid
the additional unnecessary expenses involved with listing the property, paying
realtor's commission, as well as paying all additional costs associated with same.
12. As indicated in defendant Robert Norton's affidavit, under the circumstances, Robert
Norton consent to having the property listed for sale.
13. Additionally, the consent to sell is with the understanding that the funds are to be
maintained in escrow by the Court pending a resolution on the subsequent allocation
of same.
2 of 7
FILED: ONONDAGA COUNTY CLERK 10/11/2022 03:43 PM INDEX NO. 008543/2020
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 10/11/2022
14. As it relates to the Demand Note set forth in Plaintiff's fourth cause of action, it is
respectfully submitted that same is outside the statute of limitation.
15. The Demand Note was executed on July 11, 2012. A copy of same along with the
initial demand is annexed hereto as Exhibit G.
16. On the same date, another document was executed which purports to release
defendant Robert Norton from any liability. A copy of same is annexed hereto as
Exhibit H.
17. According to the Plaintiff, he made a demand for payment on September 17, 2020 via
counsel. A copy of same is annexed hereto as Exhibit G.
18. As indicated in Robert Norton's sworn affidavit, no other demands of whatsoever
nature have been made upon him.
19. In fact, the Demand for a Verified Bill of Particulars, question #12 demanded that
Plaintiff respond to the following:
"12. Please set forth the dates, times and manner of each and every
demand for payment made by the Plaintiff of the defendant Robert
Note."
Norton to pay said Promissory
In response, Plaintiff stated:
"12. I demanded payment on the Promissory Note from Robert
2020."
Norton via a letter sent by my attorney on September 14,
20. A true and accurate copy of the Plaintiff's Verified Bill of Particulars is annexed
hereto as Exhibit J.
21. The Court will note, and it's certainly not in dispute, that the document at issue,
Note"
although entitled "Promissory has none of the legal attributes of an actual
Promissory Note.
3 of 7
FILED: ONONDAGA COUNTY CLERK 10/11/2022 03:43 PM INDEX NO. 008543/2020
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 10/11/2022
22. A promissory note typically contains all the terms pertaining to the indebtedness,
such as the principal amount, interest rate, maturity date, date and place of issuance as
well as the frequency of payments.
23. In this case, we have a Note dated July 11, 2012 with no maturity date but is instead
due on demand. As a result, it is considered a demand note. See Mundaca
Investment Corp v. Rivizgigno citing (National Westminster Bank v. Vannier
Group, 160 A.D.2d 348, 350)... "Demand notes are notes "payable at sight or on
* * * stated" 3-108)...."
presentation and in which no time for payment is (UCC
Mundaca Investment Corp. v. Rivizgigno, 247 A.D.2d 904 N.Y. App. Div. (1998).
24. The Court will note that CPLR Section 213 sets forth those actions which must be
commenced within 6 years:
"213. Actions to be commenced within six years: where not otherwise
provided for; on contract; on sealed instrument; on bond or note, and
mortgage upon real property; by state based on misappropriation of public
property; based on mistake; by corporation against director, officer or
stockholder; based on fraud. The following actions must be commenced
within six years:
1. an action for which no limitation is specifically prescribed by law;
2. an action upon a contractual obligation or liability, express or implied,
except as provided in section two hundred thirteen-a of this article or article 2
"
of the uniform commercial code or article 36-B of the general business law;
25. Moreover, New York Uniform Commercial Code § 3-122 provides in part as follows:
Section 3--122. Accrual of Cause of Action.
(1) A cause of action against a maker or an acceptor accrues
(a) in the case of a time instrument on the day after maturity;
(b) in the case of a demand instrument upon its date or, if no date
is stated, on the date of issue.
(2) A cause of action against the obligor of a demand or time
certificate of deposit accrues upon demand, but demand on a time
certificate may not be made until on or after the date of maturity.
4 of 7
FILED: ONONDAGA COUNTY CLERK 10/11/2022 03:43 PM INDEX NO. 008543/2020
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 10/11/2022
(3) A cause of action against a drawer of a draft or an indorser of any
instrument accrues upon demand following dishonor of the instrument.
Notice of dishonor is a demand.
Unless an instrument provides otherwise, interest runs at the rate
(4)
provided by law for a judgment
(a) in the case of a maker, acceptor or other primary obligor of a
demand instrument, from the date of demand;
(b) in all other cases from the date of accrual of the cause of
action.
26. The Promissory Note in the instant case has no date indicated therein as to when it
was due, other than on demand. In other words, it contained no maturity date.
27. Moreover, it is not disputed that other than the September 17, 2020 demand, no other
demands were made.
28. The first and only demand was made some 8 years after the execution of the Note and
certainly well beyond the 6 year statute of limitations for demand notes per NY State
law and Article 3 of the Uniform Commercial Code.
29. In fact, in Shellev v. Dixon Equities, 300 A.D.2d 566 N.Y. App. Div. 2002, in
addressing the statute of limitation on a demand note, the court pointed out that the
Statute of Limitation on demand note begins to run on the date of its execution:
"An action to recover on a note is subject to a six-year statute of limitations (see
CPLR 213). Further, the statute of limitations on an action to recover on a demand
note begins to run upon the date of its execution (see Phoenix Acquisition Corp.
v. Campcore, Inc., 81 N.Y.2d 138, 143; Pomaro v. Quality Sheet Metal, 295
A.D.2d 416, 418). However, the statute of limitations may be tolled by a written
acknowledgment of the debt (see General Obligations Law § 17-101; Skaidas v.
Terovolas, 271 A.D.2d 521; Estate of Vengroski v. Garden Inn, 114 A.D.2d
898)."
927, 928; Bernstein v. Kaplan, 67 A.D.2d 897,
5 of 7
FILED: ONONDAGA COUNTY CLERK 10/11/2022 03:43 PM INDEX NO. 008543/2020
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 10/11/2022
30. As indicated, the Promissory Note in the instant case has no maturity date, other than
due on demand. As such, the six year statute of limitation began to run on the date it
was executed, that being July 11, 2012.
31. Moreover, it is not disputed that other than the September 17, 2020 demand, no other
demands were made.
32. The first and only demand made some 8 years after the date of the Note and certainly
well beyond the 6 year statute of limitations for demand notes, both per NY State
Law as well as Article 3 of the Uniform Commercial Code.
33. As a result, Plaintiff's request for summary judgment on its Fourth Cause of Action
as to a breach of contract by Robert Norton regarding the July 11, 2012 Note should
be denied and Plaintiff's fourth cause of action should be dismissed in its entirety.
WHEREFORE, Robert Norton hereby consent to Plaintiff's request to the listing of the
house for sale only, with the funds to be maintained in escrow by the Court or as may be
directed by the Court, pending the deposition of the Plaintiff and resolution on the remaining
causes of action in Plaintiff's complaint and the subsequent allocation of the sale proceeds,
4"'
and further requests that the Plaintiff's Cause of Action against Robert Norton alleging
breach of contract be dismissed in its entirety, together with such other further relief which as
this court may deem just, proper and equitable.
Dated: October 11, 2022 s,
F Law, P.C.
By: Francesco Fabiano
Mailing Address:
5640 E. Taft Rd., #2025
Syracuse, NY 13220
(315) 453-9535 Phone
Attorneys for Defendant Robert Norton
6 of 7
FILED: ONONDAGA COUNTY CLERK 10/11/2022 03:43 PM INDEX NO. 008543/2020
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 10/11/2022
To:
Erin M, Tyreman, Esq.
MELVIN & MELVIN, PLLC
Attorneys for Plaintiff Wayne Norton
217 S. Salina St., 7th Floor
Syracuse, New York 13202
(315) 422-1311
Richard H. Jarvis, Esq.
Attorney for Defendant Bruce Norton
315 West Fayette Street
Syracuse, New York 13202
(315) 426-1525
7 of 7
Preview
FILED: ONONDAGA COUNTY CLERK 10/11/2022 03:43 PM INDEX NO. 008543/2020 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 10/11/2022 SUPREME COURT STATE OF NEW YORK COUNTY OF ONONDAGA WAYNE NORTON, Plaintiff, Index No. 008543/2020 vs. ATTORNEY AFFIRMATION IN RESPONSE TO PLAINTIFF'S MOTION FOR PARTITION AND PARTIAL SUMMARY JUDGMENT ROBERT NORTON and BRUCE NORTON, Defendants Francesco Fabiano, under penalty of perjury, hereby affirms and shows the Court as follows: 1. I am an attorney duly authorized to practice law before this court and submit this affirmation on behalf of the defendant Robert Norton and in response to Plaintiff's instant motion. 2. Respectfully, Plaintiff's motion is premature since the deposition of the Plaintiff has not yet been conducted although duly demanded and, Plaintiff's counsel has continually represented to allow Plaintiff's deposition to go forward. 3. By way of a brief overview, the Plaintiff's discovery was submitted within 10 days of the filing of the Note of Issue. 4. Following same and continuing thereafter, Plaintiff's counsel has consistently represented that the taking of Plaintiff's deposition may take place post the Note of Issue. 5. Your affiant understands that the Plaintiff has moved and relocated to South Korea, making the taking of his deposition difficult given the time differences between the two countries. 1 of 7 FILED: ONONDAGA COUNTY CLERK 10/11/2022 03:43 PM INDEX NO. 008543/2020 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 10/11/2022 6. However, that said, and as indicated, the Plaintiff's deposition is critical in order to resolve the majority of the issues important to this case, particularly the accounting and distribution of any proceeds from the sale of the 105 Yager Drive residence, unless the parties cooperate or stipulate otherwise. 7. To date, the plaintiff has not been presented for depositions making it difficult if not impossible to address the various dispositive issues including the accounting portion of this case. 8. As indicated in the accompanying affidavit of Robert Norton, Plaintiff has been, for the most part, at least until recently, residing in Texas. 9. Defendant has been attempting to purchase each of his brother's interest in the residence. 10. Although his brother Bruce Norton has been willing, Plaintiff Wayne Norton has rejected any such attempts and has been inconsistent with his responses. 11. Aside from the fact that this is his childhood home where he has resided the majority of his life, Defendant Robert Norton also wanted to purchase the residence and avoid the additional unnecessary expenses involved with listing the property, paying realtor's commission, as well as paying all additional costs associated with same. 12. As indicated in defendant Robert Norton's affidavit, under the circumstances, Robert Norton consent to having the property listed for sale. 13. Additionally, the consent to sell is with the understanding that the funds are to be maintained in escrow by the Court pending a resolution on the subsequent allocation of same. 2 of 7 FILED: ONONDAGA COUNTY CLERK 10/11/2022 03:43 PM INDEX NO. 008543/2020 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 10/11/2022 14. As it relates to the Demand Note set forth in Plaintiff's fourth cause of action, it is respectfully submitted that same is outside the statute of limitation. 15. The Demand Note was executed on July 11, 2012. A copy of same along with the initial demand is annexed hereto as Exhibit G. 16. On the same date, another document was executed which purports to release defendant Robert Norton from any liability. A copy of same is annexed hereto as Exhibit H. 17. According to the Plaintiff, he made a demand for payment on September 17, 2020 via counsel. A copy of same is annexed hereto as Exhibit G. 18. As indicated in Robert Norton's sworn affidavit, no other demands of whatsoever nature have been made upon him. 19. In fact, the Demand for a Verified Bill of Particulars, question #12 demanded that Plaintiff respond to the following: "12. Please set forth the dates, times and manner of each and every demand for payment made by the Plaintiff of the defendant Robert Note." Norton to pay said Promissory In response, Plaintiff stated: "12. I demanded payment on the Promissory Note from Robert 2020." Norton via a letter sent by my attorney on September 14, 20. A true and accurate copy of the Plaintiff's Verified Bill of Particulars is annexed hereto as Exhibit J. 21. The Court will note, and it's certainly not in dispute, that the document at issue, Note" although entitled "Promissory has none of the legal attributes of an actual Promissory Note. 3 of 7 FILED: ONONDAGA COUNTY CLERK 10/11/2022 03:43 PM INDEX NO. 008543/2020 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 10/11/2022 22. A promissory note typically contains all the terms pertaining to the indebtedness, such as the principal amount, interest rate, maturity date, date and place of issuance as well as the frequency of payments. 23. In this case, we have a Note dated July 11, 2012 with no maturity date but is instead due on demand. As a result, it is considered a demand note. See Mundaca Investment Corp v. Rivizgigno citing (National Westminster Bank v. Vannier Group, 160 A.D.2d 348, 350)... "Demand notes are notes "payable at sight or on * * * stated" 3-108)...." presentation and in which no time for payment is (UCC Mundaca Investment Corp. v. Rivizgigno, 247 A.D.2d 904 N.Y. App. Div. (1998). 24. The Court will note that CPLR Section 213 sets forth those actions which must be commenced within 6 years: "213. Actions to be commenced within six years: where not otherwise provided for; on contract; on sealed instrument; on bond or note, and mortgage upon real property; by state based on misappropriation of public property; based on mistake; by corporation against director, officer or stockholder; based on fraud. The following actions must be commenced within six years: 1. an action for which no limitation is specifically prescribed by law; 2. an action upon a contractual obligation or liability, express or implied, except as provided in section two hundred thirteen-a of this article or article 2 " of the uniform commercial code or article 36-B of the general business law; 25. Moreover, New York Uniform Commercial Code § 3-122 provides in part as follows: Section 3--122. Accrual of Cause of Action. (1) A cause of action against a maker or an acceptor accrues (a) in the case of a time instrument on the day after maturity; (b) in the case of a demand instrument upon its date or, if no date is stated, on the date of issue. (2) A cause of action against the obligor of a demand or time certificate of deposit accrues upon demand, but demand on a time certificate may not be made until on or after the date of maturity. 4 of 7 FILED: ONONDAGA COUNTY CLERK 10/11/2022 03:43 PM INDEX NO. 008543/2020 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 10/11/2022 (3) A cause of action against a drawer of a draft or an indorser of any instrument accrues upon demand following dishonor of the instrument. Notice of dishonor is a demand. Unless an instrument provides otherwise, interest runs at the rate (4) provided by law for a judgment (a) in the case of a maker, acceptor or other primary obligor of a demand instrument, from the date of demand; (b) in all other cases from the date of accrual of the cause of action. 26. The Promissory Note in the instant case has no date indicated therein as to when it was due, other than on demand. In other words, it contained no maturity date. 27. Moreover, it is not disputed that other than the September 17, 2020 demand, no other demands were made. 28. The first and only demand was made some 8 years after the execution of the Note and certainly well beyond the 6 year statute of limitations for demand notes per NY State law and Article 3 of the Uniform Commercial Code. 29. In fact, in Shellev v. Dixon Equities, 300 A.D.2d 566 N.Y. App. Div. 2002, in addressing the statute of limitation on a demand note, the court pointed out that the Statute of Limitation on demand note begins to run on the date of its execution: "An action to recover on a note is subject to a six-year statute of limitations (see CPLR 213). Further, the statute of limitations on an action to recover on a demand note begins to run upon the date of its execution (see Phoenix Acquisition Corp. v. Campcore, Inc., 81 N.Y.2d 138, 143; Pomaro v. Quality Sheet Metal, 295 A.D.2d 416, 418). However, the statute of limitations may be tolled by a written acknowledgment of the debt (see General Obligations Law § 17-101; Skaidas v. Terovolas, 271 A.D.2d 521; Estate of Vengroski v. Garden Inn, 114 A.D.2d 898)." 927, 928; Bernstein v. Kaplan, 67 A.D.2d 897, 5 of 7 FILED: ONONDAGA COUNTY CLERK 10/11/2022 03:43 PM INDEX NO. 008543/2020 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 10/11/2022 30. As indicated, the Promissory Note in the instant case has no maturity date, other than due on demand. As such, the six year statute of limitation began to run on the date it was executed, that being July 11, 2012. 31. Moreover, it is not disputed that other than the September 17, 2020 demand, no other demands were made. 32. The first and only demand made some 8 years after the date of the Note and certainly well beyond the 6 year statute of limitations for demand notes, both per NY State Law as well as Article 3 of the Uniform Commercial Code. 33. As a result, Plaintiff's request for summary judgment on its Fourth Cause of Action as to a breach of contract by Robert Norton regarding the July 11, 2012 Note should be denied and Plaintiff's fourth cause of action should be dismissed in its entirety. WHEREFORE, Robert Norton hereby consent to Plaintiff's request to the listing of the house for sale only, with the funds to be maintained in escrow by the Court or as may be directed by the Court, pending the deposition of the Plaintiff and resolution on the remaining causes of action in Plaintiff's complaint and the subsequent allocation of the sale proceeds, 4"' and further requests that the Plaintiff's Cause of Action against Robert Norton alleging breach of contract be dismissed in its entirety, together with such other further relief which as this court may deem just, proper and equitable. Dated: October 11, 2022 s, F Law, P.C. By: Francesco Fabiano Mailing Address: 5640 E. Taft Rd., #2025 Syracuse, NY 13220 (315) 453-9535 Phone Attorneys for Defendant Robert Norton 6 of 7 FILED: ONONDAGA COUNTY CLERK 10/11/2022 03:43 PM INDEX NO. 008543/2020 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 10/11/2022 To: Erin M, Tyreman, Esq. MELVIN & MELVIN, PLLC Attorneys for Plaintiff Wayne Norton 217 S. Salina St., 7th Floor Syracuse, New York 13202 (315) 422-1311 Richard H. Jarvis, Esq. Attorney for Defendant Bruce Norton 315 West Fayette Street Syracuse, New York 13202 (315) 426-1525 7 of 7