Preview
FILED: ONONDAGA COUNTY CLERK 11/14/2022 10:46 AM INDEX NO. 008543/2020
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 11/14/2022
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ONONDAGA
WAYNE NORTON,
Plaintiff DECISION & ORDER
v.
Index No.: 008513/2020
ROBERT T. NORTON and BRUCE NORTON, HON. GREGORY R. (;ILBERT .ISC
Defendants.
Appearances: Erin M. Tyreman, Esq. Thomas M. Robertson, Esq.
Melvin & Melvin, PLLC Fabiano Law. PC
Attomeys for Ptaintiff Attomeys for Robert T. Norton
217 S. Salina Street, 7u Floor 5640 E. Taft Road #2025
Syracuse, New York 13202 Syracuse, New York 13220
Richard H. Jarvis, Esq.
Attomey for Bruce Norton
3 l5 West Fayette Street
Syracuse, New York 13202
BACKGROUND
This partition action, commenced December 15,2020, involves a single-family residence
in Liverpool, New York. Plaintiff, Wayne Norton ("Wayne"), seeks partial summary judgment for
pa(ition/sale as to Robert T. Norton ("Robert") and Bruce Norton ("Bruce"), together with breach
ofcontract and damages of$25,000.00 with attomey fees as to Robert. Robert files opposition.
Issue was joined by an answer for Bruce on January 7, 202
I and answer and counterclaims
by Robert on January 27,2021. A reply was filed February 16,2021. There was a disclosure
motion filed by Wayne directed to Robert. This resulted in a Scheduling Order in which the parties
were to complete all disclosure by December '15. 2021 and plaintiff was to file the trial note of
issue by December 31, 2021 . Dispositive motions were to be filed no later than 60 days after the
filing of the trial note of issue. These dates were extended by Letter-Order to March 15,2022 for
all disclosure and March3 1, 2022 for lhe note of issue. No further extensions were granted.
DISCUSSION
Summary judgment may be granted only where there are no triable issues of fact and the
moving party is entitled to judgment as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d
320 (1986); Zuckerman v. Ci of New York 49 NY2d 557 (1980). The motion needs to be
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supported by sulficient evidence in admissible form to show the material and undisputed facts
based on which judgment as a matter of law must be granted. Winegrad v. New York University
Medical Center 64 NY2d 851 (198s); Viviane Etienne Medical Care v. Country-Wide Insurance
Company, 25 NY3d 498 (2015). This is an affirmative obligation for the moving party. Voss v.
Netherlands Insurance Co., 22 NY3d 728 (2014); Yun Tune Chow v. Reckitt & Colman. Inc., 17
NY3d 29 (201l). In the absence of such an affirmative showing by the moving party, the motion
must be denied regardless of the sulficiency of the responding papers Vega v. Restani
C truction Co I 8 NY3d 499 (2012); Smalls v. AJI Industries. Inc., l0 NY3d 733 (2008).
Once the burden on the motion has passed to the responding party, it is incumbent on that
party to demonstrate by admissible evidence the questions of fact or defense which may preclude
summary judgment. Alvarez.68 NY2d at 324;Zwkerman,49 NY2d at 562. A responding burden
is not met by conclusory or unsubstantiated allegations. Gonzalez v. 98 Mag Leasing Com.. 95
NY2d l2a (2000); Zuckerman 49 NY2d at 562
The Cou( is charged to view evidence and inferences arising therefrom in a light most
favorable to the responding party. Haymon v. Pettit, 9 NY3d 324 (2007); Fundamental Portfolio
Advisors. Inc. v. Tocqueville Asset Mst.. LP. 7 NY3d 96 (2006). The fi.rnction ofthe Court on the
motion is the determination of whether a triable issue of fact exists and not one determining
material fact or credibility issues. Veqa. l8 NY3d at 505 and Sillman v. Twentieth Century-Fox
Film Corp.. 3 NY2d 395 ( l e57).
PARTITION
Partition actions are equitable in nature and regulated by statute, particularly Article 9 ol
the Real Property Actions and Proceedings Law. 10 Wanen's Weed New York Real Property
$ 103.01. Plaintiffis entitled to partial reliefas a matter of law. Bruce submits no opposition. Robert
consents to sale as long as the net proceeds of sale are held in escrow pending an accounting
between the parties. Wayne consents to the escrow of funds on this motion.
An accounting is a necessary incident ofa partition action and is a matter of right before
entry ol final judgment. The Court is required to ensure that the rights and interests of the parties
are fixed in such a manner so that the partition decree will result in a finding that works full and
complete justice between the parties. Grossman v. Baker, 182 AD2d 1119 (4th Dept 1992).
Appointment of a referee is not seen as necessary under these circumstances.
Accordingly, it is
ORDERED that the motion of plaintiff, Wayne Norton, for partial summary judgment for
partition and sale of the subject property is GRANTED and the same shall be listed and sold by
the parties with Richard H. Jarvis, Esq. being authorized hereby to execute any listing agreements
on behalfofall parties and with the net proceeds ofsale to be held in escrow by Richard H. Jarvis,
Esq., pending further direction of the Court at trial or hearing in this matter; and it is
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ORDERED that all closing costs. including the attomey fees of Richard H. Jarvis, Esq. at
his usual and customary hourly rate together with his costs incident to the sale of the premises,
shall be equally bome by the parties, share and share alike, and shall be paid from the proceeds ol
sale.
CONTRACT
Wayne's fourth cause ofaction for breach ofcontract is based on a note executed July 11,
2012 in the amount of $25,000.00 [DKT # 3] with no interest and payment on demand. Wayne
shows that a demand for payment was first made on September 17,2020 [DKT # 51]. Payment
within 30 days following the demand as required by the note has not been made. Generally, and
subject to any defense being raised, this is sufficient for Wayne to meet his burden on the motion.
Robert, as previously noted, has asserted by answer and opposition on the motion the
statute of limitations under CPLR $213 with accrual of the fourth cause of action measured from
the date of the note under UCC $3-122(lXb). The cause of action on a contract accrues when a
claimant possesses a legal right to demand payment, not when the demand is actually made. Hahn
Automotive Warehouse lnc. v. American Zurich Insurance Co , l8 NY3d 76s (2012)
Consequently, and as pointed out by Robert, the cause of action for a note payable on demand
accrues at the time it is executed. Elia v. Perla, 150 AD3d 962 (2 d Dept 2017); Lvnford v.
Williams , 34 AD3d 761 (2'd Dept 2006); Shellv v. Dixon Equities, 300 AD2d 566 ( 2"d Dept2O02)
Robert confirms that there was no demand lor payment prior to September 17,2020 and
this is not disputed by Wayne. Wayne points to no relevant case law that the statute of limitations
did not expire before the demand for payment.
Accordingly, it is
ORDERED that the motion by ptaintiff, Wayne Norton, for partial summary judgment on
the lourth cause ofaction ofthe complaint against the defendant, Robert Norton, is DENIED and
the fourth cause olaction of the complaint is DISMISSED as a matter of law based on the statute
of limitations.
DISCLOSURI
Robert raises in his opposition that disclosure in the form olthe deposition of Wayne has
not been completed. The Court recognizes that it will take time lor the property to be sold and
notes that a fair accounting in the matter cannot be achieved without Wayne's deposition.
One stated reason that Wayne's deposition has not been completed is that he is working in
South Korea and the time difference makes the mechanics of the deposition difficult. Counsel have
agreed to allow for Wayne's deposition to be conducted post-note of issue to accommodate this
unusual circumstance as permitted by 22 NYCRR $202.21(d). The Court is aware ofthe ongoing
problem although no motion was brought or stipulation presented for approval.
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In the exercise ofdiscretion, the Court will treat the papers before it as such an application.
Wayne has had just short of two years to make himself available for deposition. From t}re papers
submitted, the Court can see that Wayne spends a great deal oftime working oversezrs, there being
mention of Afghanistan and Korea. That being said, it would be patently unfair for him to assert
causes of action in this litigation and then use his overseas employment as a tool to avoid his
deposition on those same causes of action.
Accordingly, it is
ORDERED that the post note of issue deposition of Wayne Norton and any document
disclosure specihcally requested therein, will be authorized under the following conditions:
l. Wayne Norton is to be made available for deposition by counsel for the parties on any
business weekday, not to include holidays, as counsel may agree to start at 10:00 am and to be
continued until completed.
2. Said deposition shall be conducted via electronic means but may be conducted in person
in Syracuse, New York if Wayne Norton is so available.
3. Said deposition shall take place no later than February 17,2023
4. Any documents requested during the course ofthe deposition shall be supplied or shall
be precluded from the trial or any further proceedings in this matter ifnot produced by March 17,
2023.
5. That upon the failure of Wayne Norton to appear for deposition as herein directed, the
second, third and fifth causes of action of the complaint shall be DISMISSED with prejudice.
IT IS SO ORDERED.
ENTER
Dated: November 14, 2022
Oswego, New York
t4 )a[
HON. GREGORY R. GILBE
SUPREME COURT JUSTICE
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Preview
FILED: ONONDAGA COUNTY CLERK 11/14/2022 10:46 AM INDEX NO. 008543/2020 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 11/14/2022 STATE OF NEW YORK SUPREME COURT : COUNTY OF ONONDAGA WAYNE NORTON, Plaintiff DECISION & ORDER v. Index No.: 008513/2020 ROBERT T. NORTON and BRUCE NORTON, HON. GREGORY R. (;ILBERT .ISC Defendants. Appearances: Erin M. Tyreman, Esq. Thomas M. Robertson, Esq. Melvin & Melvin, PLLC Fabiano Law. PC Attomeys for Ptaintiff Attomeys for Robert T. Norton 217 S. Salina Street, 7u Floor 5640 E. Taft Road #2025 Syracuse, New York 13202 Syracuse, New York 13220 Richard H. Jarvis, Esq. Attomey for Bruce Norton 3 l5 West Fayette Street Syracuse, New York 13202 BACKGROUND This partition action, commenced December 15,2020, involves a single-family residence in Liverpool, New York. Plaintiff, Wayne Norton ("Wayne"), seeks partial summary judgment for pa(ition/sale as to Robert T. Norton ("Robert") and Bruce Norton ("Bruce"), together with breach ofcontract and damages of$25,000.00 with attomey fees as to Robert. Robert files opposition. Issue was joined by an answer for Bruce on January 7, 202 I and answer and counterclaims by Robert on January 27,2021. A reply was filed February 16,2021. There was a disclosure motion filed by Wayne directed to Robert. This resulted in a Scheduling Order in which the parties were to complete all disclosure by December '15. 2021 and plaintiff was to file the trial note of issue by December 31, 2021 . Dispositive motions were to be filed no later than 60 days after the filing of the trial note of issue. These dates were extended by Letter-Order to March 15,2022 for all disclosure and March3 1, 2022 for lhe note of issue. No further extensions were granted. DISCUSSION Summary judgment may be granted only where there are no triable issues of fact and the moving party is entitled to judgment as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Zuckerman v. Ci of New York 49 NY2d 557 (1980). The motion needs to be I 1 of 4 FILED: ONONDAGA COUNTY CLERK 11/14/2022 10:46 AM INDEX NO. 008543/2020 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 11/14/2022 supported by sulficient evidence in admissible form to show the material and undisputed facts based on which judgment as a matter of law must be granted. Winegrad v. New York University Medical Center 64 NY2d 851 (198s); Viviane Etienne Medical Care v. Country-Wide Insurance Company, 25 NY3d 498 (2015). This is an affirmative obligation for the moving party. Voss v. Netherlands Insurance Co., 22 NY3d 728 (2014); Yun Tune Chow v. Reckitt & Colman. Inc., 17 NY3d 29 (201l). In the absence of such an affirmative showing by the moving party, the motion must be denied regardless of the sulficiency of the responding papers Vega v. Restani C truction Co I 8 NY3d 499 (2012); Smalls v. AJI Industries. Inc., l0 NY3d 733 (2008). Once the burden on the motion has passed to the responding party, it is incumbent on that party to demonstrate by admissible evidence the questions of fact or defense which may preclude summary judgment. Alvarez.68 NY2d at 324;Zwkerman,49 NY2d at 562. A responding burden is not met by conclusory or unsubstantiated allegations. Gonzalez v. 98 Mag Leasing Com.. 95 NY2d l2a (2000); Zuckerman 49 NY2d at 562 The Cou( is charged to view evidence and inferences arising therefrom in a light most favorable to the responding party. Haymon v. Pettit, 9 NY3d 324 (2007); Fundamental Portfolio Advisors. Inc. v. Tocqueville Asset Mst.. LP. 7 NY3d 96 (2006). The fi.rnction ofthe Court on the motion is the determination of whether a triable issue of fact exists and not one determining material fact or credibility issues. Veqa. l8 NY3d at 505 and Sillman v. Twentieth Century-Fox Film Corp.. 3 NY2d 395 ( l e57). PARTITION Partition actions are equitable in nature and regulated by statute, particularly Article 9 ol the Real Property Actions and Proceedings Law. 10 Wanen's Weed New York Real Property $ 103.01. Plaintiffis entitled to partial reliefas a matter of law. Bruce submits no opposition. Robert consents to sale as long as the net proceeds of sale are held in escrow pending an accounting between the parties. Wayne consents to the escrow of funds on this motion. An accounting is a necessary incident ofa partition action and is a matter of right before entry ol final judgment. The Court is required to ensure that the rights and interests of the parties are fixed in such a manner so that the partition decree will result in a finding that works full and complete justice between the parties. Grossman v. Baker, 182 AD2d 1119 (4th Dept 1992). Appointment of a referee is not seen as necessary under these circumstances. Accordingly, it is ORDERED that the motion of plaintiff, Wayne Norton, for partial summary judgment for partition and sale of the subject property is GRANTED and the same shall be listed and sold by the parties with Richard H. Jarvis, Esq. being authorized hereby to execute any listing agreements on behalfofall parties and with the net proceeds ofsale to be held in escrow by Richard H. Jarvis, Esq., pending further direction of the Court at trial or hearing in this matter; and it is 2 2 of 4 FILED: ONONDAGA COUNTY CLERK 11/14/2022 10:46 AM INDEX NO. 008543/2020 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 11/14/2022 ORDERED that all closing costs. including the attomey fees of Richard H. Jarvis, Esq. at his usual and customary hourly rate together with his costs incident to the sale of the premises, shall be equally bome by the parties, share and share alike, and shall be paid from the proceeds ol sale. CONTRACT Wayne's fourth cause ofaction for breach ofcontract is based on a note executed July 11, 2012 in the amount of $25,000.00 [DKT # 3] with no interest and payment on demand. Wayne shows that a demand for payment was first made on September 17,2020 [DKT # 51]. Payment within 30 days following the demand as required by the note has not been made. Generally, and subject to any defense being raised, this is sufficient for Wayne to meet his burden on the motion. Robert, as previously noted, has asserted by answer and opposition on the motion the statute of limitations under CPLR $213 with accrual of the fourth cause of action measured from the date of the note under UCC $3-122(lXb). The cause of action on a contract accrues when a claimant possesses a legal right to demand payment, not when the demand is actually made. Hahn Automotive Warehouse lnc. v. American Zurich Insurance Co , l8 NY3d 76s (2012) Consequently, and as pointed out by Robert, the cause of action for a note payable on demand accrues at the time it is executed. Elia v. Perla, 150 AD3d 962 (2 d Dept 2017); Lvnford v. Williams , 34 AD3d 761 (2'd Dept 2006); Shellv v. Dixon Equities, 300 AD2d 566 ( 2"d Dept2O02) Robert confirms that there was no demand lor payment prior to September 17,2020 and this is not disputed by Wayne. Wayne points to no relevant case law that the statute of limitations did not expire before the demand for payment. Accordingly, it is ORDERED that the motion by ptaintiff, Wayne Norton, for partial summary judgment on the lourth cause ofaction ofthe complaint against the defendant, Robert Norton, is DENIED and the fourth cause olaction of the complaint is DISMISSED as a matter of law based on the statute of limitations. DISCLOSURI Robert raises in his opposition that disclosure in the form olthe deposition of Wayne has not been completed. The Court recognizes that it will take time lor the property to be sold and notes that a fair accounting in the matter cannot be achieved without Wayne's deposition. One stated reason that Wayne's deposition has not been completed is that he is working in South Korea and the time difference makes the mechanics of the deposition difficult. Counsel have agreed to allow for Wayne's deposition to be conducted post-note of issue to accommodate this unusual circumstance as permitted by 22 NYCRR $202.21(d). The Court is aware ofthe ongoing problem although no motion was brought or stipulation presented for approval. 3 3 of 4 FILED: ONONDAGA COUNTY CLERK 11/14/2022 10:46 AM INDEX NO. 008543/2020 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 11/14/2022 In the exercise ofdiscretion, the Court will treat the papers before it as such an application. Wayne has had just short of two years to make himself available for deposition. From t}re papers submitted, the Court can see that Wayne spends a great deal oftime working oversezrs, there being mention of Afghanistan and Korea. That being said, it would be patently unfair for him to assert causes of action in this litigation and then use his overseas employment as a tool to avoid his deposition on those same causes of action. Accordingly, it is ORDERED that the post note of issue deposition of Wayne Norton and any document disclosure specihcally requested therein, will be authorized under the following conditions: l. Wayne Norton is to be made available for deposition by counsel for the parties on any business weekday, not to include holidays, as counsel may agree to start at 10:00 am and to be continued until completed. 2. Said deposition shall be conducted via electronic means but may be conducted in person in Syracuse, New York if Wayne Norton is so available. 3. Said deposition shall take place no later than February 17,2023 4. Any documents requested during the course ofthe deposition shall be supplied or shall be precluded from the trial or any further proceedings in this matter ifnot produced by March 17, 2023. 5. That upon the failure of Wayne Norton to appear for deposition as herein directed, the second, third and fifth causes of action of the complaint shall be DISMISSED with prejudice. IT IS SO ORDERED. ENTER Dated: November 14, 2022 Oswego, New York t4 )a[ HON. GREGORY R. GILBE SUPREME COURT JUSTICE 4 4 of 4