MANN v. GREEN (2018)

Orders, Supreme Court, New York County (Eileen A. Rakower, J.), entered on or about May 5, 2017 and May 8, 2017, which, to the extent appealed from, denied plaintiff's motions for summary judgment in lieu of complaint and to dismiss defendant's counterclaims for money had and received and unjust enrichment, unanimously affirmed, without costs.

Plaintiff made a prima facie showing of his entitlement to summary judgment on a promissory note by submitting the executed note and his uncontested affidavit stating that he demanded payment after defendant had defaulted on the note and that defendant failed to pay (see Quadrant Mgt. Inc. v. Hecker, 102 A.D.3d 410, 957 N.Y.S.2d 697 [1st Dept. 2013] ).  In opposition, defendant raised a triable issue as to whether the note was supported by consideration (see Manufacturers Hanover Trust Co. v. L.N. Props., 174 A.D.2d 383, 383, 570 N.Y.S.2d 576 [1st Dept. 1991] ).

Plaintiff argues that his release of an antecedent $1.2 million obligation on defendant's part constitutes consideration for the note.  However, this past consideration is not expressed in the note, and therefore does not fall within the exception to the general rule that “past consideration is no consideration” (Korff v. Corbett, 155 A.D.3d 405, 408, 65 N.Y.S.3d 498 [1st Dept. 2017] [internal quotation marks omitted];  General Obligations Law § 5–1105).  As recited in the release, which was contained in a buyout agreement, plaintiff executed the release in exchange for $2.2 million.  The $250,000 note, a wholly separate agreement, is not mentioned in the buyout agreement, and provides no details about consideration, stating merely that the promise is “for value received.”

Plaintiff failed to demonstrate conclusively that defendant waived her counterclaims for money had and received and unjust enrichment by making payments under the note.  In support of the counterclaims, defendant alleges that she made the payments in the mistaken belief that the note was enforceable (see generally King v. Fox, 7 N.Y.3d 181, 190, 818 N.Y.S.2d 833, 851 N.E.2d 1184 [2006];  Baldwin v. Burrows, 47 N.Y.199, 212 [1872] ).  Nor does plaintiff's documentary evidence conclusively demonstrate that the note is enforceable.