Preview
FILED: SUFFOLK COUNTY CLERK 01/28/2024 05:40 PM INDEX NO. 602352/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 01/28/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
---....-----__-____-..-_________--,----------------·---------X
GLOUA MONTOYA,
VERIFIED COMPLAINT
Plaintiff
Index No.:
-against-
DIANA MILENA ALVAREZ,
Defendant
__--...----...-- ____...-- ____----------- --------------------------X
Plaintiff, by her attorney, WILLIAM M. GEARTY, ESQ., complaining of the
Defendant, alleges as follows:
THE PARTIES
1. At all times hereinafter mentioned, Plaintiff GLORIA MONTOYA was and is and
individual with a residence in Hampton Bays, Town of Southampton, County of Suffolk, State of
New York.
2. At all times hereinafter mentioned, Defendant DIANA MILENA ALVAREZ was
and is and individual with a residence in Southampton, Town of Southampton, County of Suffolk,
State of New York.
3. At all times hereinafter mentioned, the cause of action alleged herein arises out
of a transaction between the parties occurrmg m the Town of Southampton, County of Suffolk, State
of New York.
NATURE OF THE PROCEEDING
4. This is an action seeking to recover damages for the failure of Defendant to repay
Plaintiff moneys she borrowed and promised to pay back pursuant to an oral agreement between the
parties asserting claims for breÓhh of contract and unjust enrichment.
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FACTUAL ALLEGATIONS
5. Plaintiff ope ates a dog grooming business in Hampton Bays, services which have
been used by Defendant's dog, Toby, for more than three (3) years.
6. The parties eventually developed a strong trustworthy friendship, emotionally,
mentally and economically.
7. On or about May 3, 2023, Defendant requested a personal loan from Plaintiff in
order to assist Defendant's son with the purchase of real property. Defendant said that she had
spoken with some lenders but was unable to get a loan.
8. Defendant told Plaintiff that if Plaintiff loaned her the money Defendant would
pay $1,000.00 for six (6) months until after the summer when Defendant would pay the $10,000.00.
9. By virtue of the special relationship with Plaintiff, Defendant induced Plaintiff
to loan her money. Plaintiff relied on the close relationship for the legality of the loan.
10. Plaintiff agreed to loan Defendant $10,000.00.
11. The agreement was put into writing. Defendant agreed to pay Plaintiff $1,000.00
monthly commencing June 1, 2023 and continuing on the first of each successive month until
November 1, 2023, as total of six (6) months. The full principal of $10,000.00 became due and
owing on November 1, 2023. A copy of the Agreement accompanied by an English translation and
an affidavit by the translator stating his qualifications and that the translation is accurate along with
a certified translation from Spanish to English is annexed hereto as Exhibit 1.
12. At the same time the agreement was signed, Qefendant gave Plaintff a check
drawn on Chase Bank for $10.,000.00 and the title to her car. The title was in the name of
Defendant's husband and he si ned the title.
13. Plaintiff ga e Defendant $10,000.00.
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14. Defendant made regular monthly payments of $1,000.00 from June 1, 2023 to
November 1, 2023.
15. When the principal amount became due, Defendant asked for more time to pay
because she did not have the money. She explained that she had a Zelle check, part of a scam, was
entered into her account 17 tinies and that Chase closed her account. The check she gave Plaintiff
was no longer good.
16. The parties agreed to an extension of one (1) month. Plaintiff returned the Chase
check and Defendant gave her a Bank of America check for $10,000.00.
17. In December, 2023, Defendant Plaintiff she did not have the money. Plaintiff
asked for the car. Defendant agreed at first but then told Plaintiff to call the police.
. 18. Defendant made no further payment.
19. Defendant failed to pay as agreed or to return the funds.
20. Plaintiff demanded Defendant return the $10,0Q0.00 loaned.
21. By reason of the facts and circumstances stated above, Plaintiff has been
damaged by Defendant in the arpount of $15,000.00.
AS AND FOR A FIRST CAUSE OF ACTION
NBREACH OF CONTRACT) .
22. Plaintiff repeats, reiterates and re-alleges each and every allegation set forth in
"1" 21"
paragraphs numbered throngl inclusive, above, as if each and every allegation was fully
set forth herein.
23.. There was agreement between Plaintiff and Defendant.
ap
24. Plaintiff complied with each and every term of the contract.
25. The agreement required payments of interest in six (6) monthly installments
whereupon the original principal was to be repaid.
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26. The parties had a special relationship by which the borrower induced reliance
on the appropriateness of the interest rate.
27. Defendant could void the transaction, keep the principal, and achieve a total
windfall at Plaintiff's expense ithrough Defendant's subterfuge and inequitable deception if the
agreement was void or voidable because of the interest rate agreed to between the parties.
28. Defendant agreed to pay and actually paid the agreed upon rate of interest
29. Plaintiff has made numerous demands to Defendant to make payment but has
been refused.
30. Defendant failed to repay the loan as agreed and otherwise failed to abide by the
contract.
31. By reason of the facts and circumstances stated above, Defendant has breached
the contract.
32. By reason of the facts and cimumstances stated above, Plaintiff has been
damaged by Defendant in an amount to be determined by the court, a sum of which exceeds the
jurisdiction for matters pending in the lower courts.
AS AND FOR A SECOND CAUSE OF ACTION
. (UNJUST ENRICHMENT)
33. Plaintiff repeats, reiterates and re-alleges each and every allegation set forth in
"1" "32"
paragraphs numbered tBirough inclusive, above, as if each and every allegation was fully
set forth herein.
34. Defendant obtained from Plaintiff funds which thereby enriched her.
35. The enrichinent was at Plaintiff's expense.
36. There is no adequate remedy at law.
37. The circumstances are such that equity and good conscience require Defendant
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to make restitution.
38. By reason ef the facts and circumstances stated above, Plaintiff has been
damaged by Defendant in an amount to be determined by the court, a sum of which exceeds the
jurisdiction for matters pending in the lower courts.
WHEREFORE, Plaintiff GLORIA MONTOYA demands judgment be granted to
Plaintiff and against Defendant DIANA MILENA ALVAREZ for the following:
A) On the first cause of action (Breach of Contract) a money judgment in an amount
to be determined by the court, a sum which exceeds the jurisdiction for matters
pending in lower courts, in actual, compensatory damages;
B) On the second cause of action (Unjust Enrichment) a money judgment an amount
to be determined by the court, a sum which exceeds the jurisdiction for matters
pending in lower courts, in actual, compensatory dµages;
C) Awarding pre-judgment interest thereon at the legal rate according to the proof;
D) Awarding reasonable attorney's fees;
E) Awarding c ts, fees, disbursements and expenses of this action; and
F) Awarding such other and further leg or equitable relief this Court deems
necessary and proper.
Dated: Nesconset, NY Yours, e c ,
January 5, 2024 By:
WILLIAM. GEARTY, ESQ.
Attorney for Plaintiff, GLORIA MONTOYA
168 Smithtown Blvd.
Nesconset, New York 11767
631-630-0818
C13maven@aol.com+
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STATE OF NEW Y ORK)
SS:
COUNTY OF SUF FOLK)
GLORIA MONTOYA, being duly sworn, deposes and says: I am the Plaintiff in the
within action; I have personally read the foregoing Verified Complaint and know the contents
thereof; the same is true to my own knowledge, except as to the matters therein stated to be alleged
on information and belief, and as to those matters I believe them to be true. To the best of my
knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the
presentation of these papers or the contentions therein are not frivolous as defined in subsection (c)
of section 103-1.1 of the Rules ÿf the Chief Administrator (22 NYCRR).
GLORIA MONTOYA
S rn t b re me this
da of , 2024
Notary Public
WILLIAM MARTINGEARTY
Notary Public-State of New York
No. 02GE5073080
Qualified in Suffolk County
Commission Expires July 14,4928-
. -
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Preview
FILED: SUFFOLK COUNTY CLERK 01/28/2024 05:40 PM INDEX NO. 602352/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 01/28/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ---....-----__-____-..-_________--,----------------·---------X GLOUA MONTOYA, VERIFIED COMPLAINT Plaintiff Index No.: -against- DIANA MILENA ALVAREZ, Defendant __--...----...-- ____...-- ____----------- --------------------------X Plaintiff, by her attorney, WILLIAM M. GEARTY, ESQ., complaining of the Defendant, alleges as follows: THE PARTIES 1. At all times hereinafter mentioned, Plaintiff GLORIA MONTOYA was and is and individual with a residence in Hampton Bays, Town of Southampton, County of Suffolk, State of New York. 2. At all times hereinafter mentioned, Defendant DIANA MILENA ALVAREZ was and is and individual with a residence in Southampton, Town of Southampton, County of Suffolk, State of New York. 3. At all times hereinafter mentioned, the cause of action alleged herein arises out of a transaction between the parties occurrmg m the Town of Southampton, County of Suffolk, State of New York. NATURE OF THE PROCEEDING 4. This is an action seeking to recover damages for the failure of Defendant to repay Plaintiff moneys she borrowed and promised to pay back pursuant to an oral agreement between the parties asserting claims for breÓhh of contract and unjust enrichment. 1 1 of 6 FILED: SUFFOLK COUNTY CLERK 01/28/2024 05:40 PM INDEX NO. 602352/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 01/28/2024 FACTUAL ALLEGATIONS 5. Plaintiff ope ates a dog grooming business in Hampton Bays, services which have been used by Defendant's dog, Toby, for more than three (3) years. 6. The parties eventually developed a strong trustworthy friendship, emotionally, mentally and economically. 7. On or about May 3, 2023, Defendant requested a personal loan from Plaintiff in order to assist Defendant's son with the purchase of real property. Defendant said that she had spoken with some lenders but was unable to get a loan. 8. Defendant told Plaintiff that if Plaintiff loaned her the money Defendant would pay $1,000.00 for six (6) months until after the summer when Defendant would pay the $10,000.00. 9. By virtue of the special relationship with Plaintiff, Defendant induced Plaintiff to loan her money. Plaintiff relied on the close relationship for the legality of the loan. 10. Plaintiff agreed to loan Defendant $10,000.00. 11. The agreement was put into writing. Defendant agreed to pay Plaintiff $1,000.00 monthly commencing June 1, 2023 and continuing on the first of each successive month until November 1, 2023, as total of six (6) months. The full principal of $10,000.00 became due and owing on November 1, 2023. A copy of the Agreement accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate along with a certified translation from Spanish to English is annexed hereto as Exhibit 1. 12. At the same time the agreement was signed, Qefendant gave Plaintff a check drawn on Chase Bank for $10.,000.00 and the title to her car. The title was in the name of Defendant's husband and he si ned the title. 13. Plaintiff ga e Defendant $10,000.00. 2 of 6 FILED: SUFFOLK COUNTY CLERK 01/28/2024 05:40 PM INDEX NO. 602352/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 01/28/2024 14. Defendant made regular monthly payments of $1,000.00 from June 1, 2023 to November 1, 2023. 15. When the principal amount became due, Defendant asked for more time to pay because she did not have the money. She explained that she had a Zelle check, part of a scam, was entered into her account 17 tinies and that Chase closed her account. The check she gave Plaintiff was no longer good. 16. The parties agreed to an extension of one (1) month. Plaintiff returned the Chase check and Defendant gave her a Bank of America check for $10,000.00. 17. In December, 2023, Defendant Plaintiff she did not have the money. Plaintiff asked for the car. Defendant agreed at first but then told Plaintiff to call the police. . 18. Defendant made no further payment. 19. Defendant failed to pay as agreed or to return the funds. 20. Plaintiff demanded Defendant return the $10,0Q0.00 loaned. 21. By reason of the facts and circumstances stated above, Plaintiff has been damaged by Defendant in the arpount of $15,000.00. AS AND FOR A FIRST CAUSE OF ACTION NBREACH OF CONTRACT) . 22. Plaintiff repeats, reiterates and re-alleges each and every allegation set forth in "1" 21" paragraphs numbered throngl inclusive, above, as if each and every allegation was fully set forth herein. 23.. There was agreement between Plaintiff and Defendant. ap 24. Plaintiff complied with each and every term of the contract. 25. The agreement required payments of interest in six (6) monthly installments whereupon the original principal was to be repaid. 3 3 of 6 FILED: SUFFOLK COUNTY CLERK 01/28/2024 05:40 PM INDEX NO. 602352/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 01/28/2024 26. The parties had a special relationship by which the borrower induced reliance on the appropriateness of the interest rate. 27. Defendant could void the transaction, keep the principal, and achieve a total windfall at Plaintiff's expense ithrough Defendant's subterfuge and inequitable deception if the agreement was void or voidable because of the interest rate agreed to between the parties. 28. Defendant agreed to pay and actually paid the agreed upon rate of interest 29. Plaintiff has made numerous demands to Defendant to make payment but has been refused. 30. Defendant failed to repay the loan as agreed and otherwise failed to abide by the contract. 31. By reason of the facts and circumstances stated above, Defendant has breached the contract. 32. By reason of the facts and cimumstances stated above, Plaintiff has been damaged by Defendant in an amount to be determined by the court, a sum of which exceeds the jurisdiction for matters pending in the lower courts. AS AND FOR A SECOND CAUSE OF ACTION . (UNJUST ENRICHMENT) 33. Plaintiff repeats, reiterates and re-alleges each and every allegation set forth in "1" "32" paragraphs numbered tBirough inclusive, above, as if each and every allegation was fully set forth herein. 34. Defendant obtained from Plaintiff funds which thereby enriched her. 35. The enrichinent was at Plaintiff's expense. 36. There is no adequate remedy at law. 37. The circumstances are such that equity and good conscience require Defendant 4 4 of 6 FILED: SUFFOLK COUNTY CLERK 01/28/2024 05:40. PM .. INDEX NO. 602352/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 01/28/2024 to make restitution. 38. By reason ef the facts and circumstances stated above, Plaintiff has been damaged by Defendant in an amount to be determined by the court, a sum of which exceeds the jurisdiction for matters pending in the lower courts. WHEREFORE, Plaintiff GLORIA MONTOYA demands judgment be granted to Plaintiff and against Defendant DIANA MILENA ALVAREZ for the following: A) On the first cause of action (Breach of Contract) a money judgment in an amount to be determined by the court, a sum which exceeds the jurisdiction for matters pending in lower courts, in actual, compensatory damages; B) On the second cause of action (Unjust Enrichment) a money judgment an amount to be determined by the court, a sum which exceeds the jurisdiction for matters pending in lower courts, in actual, compensatory dµages; C) Awarding pre-judgment interest thereon at the legal rate according to the proof; D) Awarding reasonable attorney's fees; E) Awarding c ts, fees, disbursements and expenses of this action; and F) Awarding such other and further leg or equitable relief this Court deems necessary and proper. Dated: Nesconset, NY Yours, e c , January 5, 2024 By: WILLIAM. GEARTY, ESQ. Attorney for Plaintiff, GLORIA MONTOYA 168 Smithtown Blvd. Nesconset, New York 11767 631-630-0818 C13maven@aol.com+ 5 5 of 6 FILED: SUFFOLK COUNTY CLERK 01/28/2024 05:40 PM INDEX NO. 602352/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 01/28/2024 STATE OF NEW Y ORK) SS: COUNTY OF SUF FOLK) GLORIA MONTOYA, being duly sworn, deposes and says: I am the Plaintiff in the within action; I have personally read the foregoing Verified Complaint and know the contents thereof; the same is true to my own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters I believe them to be true. To the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of these papers or the contentions therein are not frivolous as defined in subsection (c) of section 103-1.1 of the Rules ÿf the Chief Administrator (22 NYCRR). GLORIA MONTOYA S rn t b re me this da of , 2024 Notary Public WILLIAM MARTINGEARTY Notary Public-State of New York No. 02GE5073080 Qualified in Suffolk County Commission Expires July 14,4928- . - 6 6 of 6