SIEBERT v. DERMIGNY (2009)

Judgment, Supreme Court, New York County (Walter B. Tolub, J.), entered May 30, 2007, after nonjury trial, dismissing the action, unanimously affirmed, with costs.   Appeal from order, same court and Justice, entered on or about same date, which dismissed the action after findings of fact and conclusions of law, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiff bore the burden of proof in this action on an unpaid loan.   The question was whether the money advanced to defendant was actually a loan in the form of a down payment on a Manhattan co-op apartment, as alleged, or whether it was simply payment on a debt in the form of reimbursement of rent on a New Jersey apartment.   As the trial court determined, the testimony of neither party was credible, and there is no basis for concluding that the findings of fact could not have been reached under any fair interpretation of the evidence, especially where those findings rest in large part on witness credibility (see Thoreson v. Penthouse Intl., 80 N.Y.2d 490, 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369 [1992] ).

The court noted the absence of a written agreement between the parties or any purpose memorialized on plaintiff's check that might have indicated the funds advanced to defendant constituted a loan.   Furthermore, plaintiff failed to demand payment from defendant even after the latter received substantial bonuses.   Whether a notation in plaintiff's check ledger (that the check represented a loan) constituted a contemporaneous writing rested on plaintiff's credibility, which the court found lacking.