Motion for Writ in Charles David Hartshorne v. Herson Amaya Bernabel a/k/a HERSON AMAYA, Gaitri Amaya Bernabel a/k/a GAITRI AMAYA| Trellis.Law

On April 15, 2024 a Complaint,Petition was filed involving a dispute between Charles David Hartshorne, and Gaitri Amaya Bernabel A K A Gaitri Amaya, Herson Amaya Bernabel A K A Herson Amaya, for Commercial - Contract in the District Court of Queens County.

Preview
FILED: QUEENS COUNTY CLERK 04/15/2024 09:57 AM INDEX NO. 707977/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
------------------------------------------------------------------x
CHARLES DAVID HARTSHORNE Index No.

Plaintiff,

- against -

HERSON AMAYA BERNABEL a/k/a HERSON
AMAYA and GAITRI AMAYA BERNABEL a/k/a VERIFIED COMPLAINT
GAITRI AMAYA

Defendants.
------------------------------------------------------------------x

Plaintiff Charles David Hartshorne by his attorneys The Law Firm of Edward

Vitale, P.C., state as and for his verified complaint, as follows:

THE PARTIES

1. Charles David Hartshorne (“Hartshorne”) is a natural person residing and

domiciled in the State of New York.

2. Herson Amaya Bernabel a/k/a Herson Amaya ("Herson") is a natural

person residing and domiciled in the State of New.

3. Gaitri Amaya Bernabel a/k/a Gaitri Amaya ("Gaitri") is a natural person

residing and domiciled in the State of New York. Collectively, Hartshorne, Herson and

Gaitri shall be known as the “Parties”

4. Upon information and belief, Herson and Gaitri (the “Defendants”) are

husband and wife.

BACKGROUND

5. Herson and Hartshorne met in 2015 while Herson was working on a

renovation project at Hartshorne’s home.

1 of 8
FILED: QUEENS COUNTY CLERK 04/15/2024 09:57 AM INDEX NO. 707977/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024

6. Herson and Hartshorne became friendly and in or around October 2015,

Herson approached Hartshorne asking to borrow $15,000.00.

7. Herson stated that he would pay Hartshorne back when Herson and Gaitri

received their tax refund.

8. Herson stated that would be about 90 days.

9. Hartshorne agreed and loaned Herson $15,000.00.

10. After the first loan on or about October 9, 2015, Herson continued to ask

to borrow money from Hartshorne for various reasons.

11. Sometimes Herson or Gaitri asked to borrow money for alleged

emergencies.

12. Other times Herson or Gaitri asked to borrow money for various ventures.

13. From October 9, 2015 to June 16, 2020 Herson and Gaitri borrowed

$105,000.00 from Hartshorne.

14. The loans were made as follows:

10/9/2015 $15,000.00 Gaitri Amaya
12/3/2015 $1,000.00 Herson Amaya
9/12/2016 $10,000.00 Gaitri Amaya
9/19/2016 $5,000.00 Gaitri Amaya
1/9/2017 $2,000.00 Gaitri Amaya
4/19/2017 $5,000.00 Gaitri Amaya Bernabel
5/17/2017 $1,000.00 Gaitri Amaya Bernabel
6/5/2017 $2,000.00 Gaitri Amaya Bernabel
9/5/2017 $1,000.00 Gaitri Amaya Bernabel
9/18/2017 $1,000.00 Herson Amaya
12/5/2017 $15,000.00 Herson Amaya
4/3/2018 $5,000.00 Herson Amaya
8/6/2018 $4,000.00 Herson Amaya
2/11/2019 $1,000.00 Herson Amaya
3/22/2019 $14,000.00 Herson Amaya
5/15/2019 $1,000.00 Herson Amaya
7/15/2019 $4,000.00 Herson Amaya
12/16/2019 $10,000.00 Gaitri Amaya Bernabel
3/31/2020 $1,000.00 Herson Amaya

-2-

2 of 8
FILED: QUEENS COUNTY CLERK 04/15/2024 09:57 AM INDEX NO. 707977/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024

4/6/2020 $1,000.00 Herson Amaya
6/18/2020 $6,000.00 Gaitri Amaya Bernabel

15. Notwithstanding that the loans were made to different people, it was

always stated to the Plaintiff that all the loans were for the benefit of both Defendants.

16. The Defendants continuously stated that they would repay the loan as soon

as possible but never did.

17. On June 18, 2020, the Defendants entered into a Promissory Note

(“Note”) with Plaintiff to pay back all the money loaned from 2015 to 2020. See Exhibit

“A”.

18. The Note stated that in addition to paying back the money owed,

Defendants would pay interest on the loan.

19. The source of the payment was to be the sale of the Defendants’ home

located at 155-06 116th Road, Jamaica, NY 11434 (the “Premises”).

20. It was agreed between the Parties that the Premises was to be the security

for the loans made.

21. It was agreed between the Parties that the Premises would be sold within 2

years of the execution of the Note and Hartshorne would be immediately repaid plus

interest.

22. The interest was to be fair rate based upon the going rate in the market.

23. Since the execution of the Note, Plaintiff has continuously sought the

return of the money owed.

24. Despite the Note, the Defendants still have not sold the Premises.

25. Despite the Note, the Defendants have not put the Premises up for sale.

26. On or about September 20, 2023, Plaintiff causes a demand letter for

payment of the outstanding loans to be served.

-3-

3 of 8
FILED: QUEENS COUNTY CLERK 04/15/2024 09:57 AM INDEX NO. 707977/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024

27. The demand letter stated that the debt was due and owning on or about

October 20, 2023. (See Exhibit “B”)

28. No payment has been made.

AS AND FOR A FIRST CAUSE OF ACTION
(Breach of Contract)

29. Plaintiffs incorporate the allegations set forth in ¶ 1 through 28 of the

complaint by reference.

30. The Parties entered into a Note dated June 18, 2020 whereby all monies

loaned from October 9, 2015 to June 16, 2020 would be paid back with interest.

31. It was agreed that the Defendants would sell their Premises within 2 years

to pay back the loan with interest.

32. Defendants have not sold the Premises.

33. Plaintiff has duly demanded payment.

34. Defendants have not made any payments on the loan.

35. Defendants have breached the Note with Plaintiff by failing to pay back

the loan with interest as set forth in the Note.

36. Plaintiff has been damaged in an amount not less than $115,000 plus

interest and costs and disbursements.

AS AND FOR A SECOND CAUSE OF ACTION
(Unjust Enrichment)

37. Plaintiff repeats, reiterates and realleges allegations 1 – 36 above with the

same force and effect as if herein more fully set forth at length.

-4-

4 of 8
FILED: QUEENS COUNTY CLERK 04/15/2024 09:57 AM INDEX NO. 707977/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024

38. Plaintiff loaned the Defendants $115,000 from October 9, 2015 to June 16,

2020.

39. None of the monies loaned have been repaid despite Defendants’ promise

to do so.

40. As a result of the work, Defendants have been unjustly enriched in the

sum of $115,000 together with interest, costs and expenses.

AS AND FOR A THIRD CAUSE OF ACTION
(Equitable Mortgage)

41. Plaintiff repeats, reiterates and realleges allegations 1 – 40 above with the

same force and effect as if herein more fully set forth at length.

42. Plaintiff and Defendants entered into the Note specifically dealing with the

Premises.

43. The Note specifically identifies the Premises where repayment is to come

from.

44. Plaintiff is entitled to an equitable mortgage on the Premises in the amount

of the Note, plus interest to prevent unjust enrichment.

45. Defendants have failed to make any payment under the terms of the Note.

46. Plaintiff is therefore entitled to the entry of an Order of Judgment (i)

granting Plaintiff an equitable mortgage encumbering the Defendants’ ownership interest

in the Property that is enforceable to the same extent as if it were a fully executed

mortgage, and (ii) a judgment of foreclosure.

-5-

5 of 8
FILED: QUEENS COUNTY CLERK 04/15/2024 09:57 AM INDEX NO. 707977/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024

AS AND FOR A FOURTH CAUSE OF ACTION
(Breach of Fiduciary Duty)

47. Plaintiff repeats, reiterates and realleges allegations 1 – 46 above with the

same force and effect as if herein more fully set forth at length.

48. Plaintiff and Defendants entered into the Note specifically dealing with the

Premises and Defendants obligations to repay the Note.

49. The Note created a fiduciary duty wherein Defendants owed a duty to

Plaintiff.

50. Defendants owed a duty of fair dealing to Plaintiff as Defendants agreed to

sell the Premises within 2 years.

51. Defendants owed a duty of care to Plaintiff as Defendants agreed to sell

the Premises within 2 years.

52. Defendants owed a duty of loyalty to Plaintiff to act prudently to sell the

Premises within 2 years.

53. Defendants owed a duty to Plaintiff as Defendants agreed to sell the

Premises within 2 years.

54. Defendants breached their fiduciary duties by failing to sell the Premises

timely and return the funds borrowed to Plaintiff.

55. A fiduciary who breaches their duties is liable for attorney’s fees.

56. Plaintiff is entitled to the entry of a judgment in the amount of $115,000,

plus interest at the legal rate of 9 percent from the inception of each individual loan plus

attorneys fees, costs and disbursements.

-6-

6 of 8
FILED: QUEENS COUNTY CLERK 04/15/2024 09:57 AM INDEX NO. 707977/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024

AS AND FOR A FIFTH CAUSE OF ACTION
(Declaratory Judgment)

57. Plaintiff repeats, reiterates and realleges allegations 1 - 56 above with the

same force and effect as if herein more fully set forth at length.

58. An actual controversy has arisen and now exists between Plaintiff and

Defendants concerning their respective ownership of the Property and liens thereon.

59. Plaintiff is entitled to an equitable mortgage of the Premises.

60. Therefore, Plaintiff requests a judicial determination of an equitable

mortgage on the Premises.

WHEREFORE, Plaintiff demand judgment against Defendants as follows:

a. on the first cause of action against Defendants for breach of contract in the
amount of $1 15,000.00 plus interest, costs and disbursements;
b. on the second cause of action against Defendants for unjust enrichment in

the amount of $1 15,000.00 plus interest, costs and disbursements.

c. on the third cause of action against Defendants for an equitable mortgage
Defendants'
in the ownership interest in the Premises;
d. on the fourth cause of action against Defendants for breach of fiduciary

duty in the amount of $115,000.00 plus interest, costs and disbursements.

e. on the lifth cause of action against Defendants for aa declaratory
judgment; and
f. for any other and further relief as the Court deems just, proper and

equitable, including interest, costs and reasonable attorney's fees and

disbursements for this action.

Dated: Queens, New York
April 11. 2024

The Law Fin of Edward Vitale, P.C.

By.
Edwa itale
Attorneys for Plaintiffs
108-18 Queens Blvd., Suite 402
Forest Hills, NY 1 1375
516-628-6200

- 7 -

7 of 8
FILED: QUEENS COUNTY CLERK 04/15/2024 09:57 AM INDEX NO. 707977/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024

VERIFICATION

STATE OF NEW YORK )
SS.:
COUNTY OF QUEENS )

CHARLES DAVID HARTSHORNE, the undersigned, being duly sworn deposes

and says he is the plaintiff in the above-entitled action; that he has read the foregoing

complaint and knows the contents thereof; that the same is true to affiant’s own

knowledge, except as to the matters therein stated to be alleged on information and belief,

and that as to those matters he believes it to be true.

The undersigned affirms that the foregoing statements are true under penalty of
perjury.

____________________________
CHARLES DAVID HARTSHORNE

Sworn to before me this
9th day, April 2023

_________________________
Notary Public

-8-

8 of 8

Case Info

Case No.

(Subscribe to View)

Document Filed Date

April 15, 2024

Case Filing Date

April 15, 2024

County

Parties

For full print and download access, please subscribe at https://www.trellis.law/.

Complaint,Petition: Charles David Hartshorne v. Herson Amaya Bernabel a/k/a HERSON AMAYA, Gaitri Amaya Bernabel a/k/a GAITRI AMAYA

Preview

Related Topics

Case Info

Parties