Nicole Browning, Plaintiff, v. Steven J. Rifkin, Defendant. (2025)

The following papers numbered 1 to 5 were read on this motion:

Paper Number

Notice of Motion, Affirmation and Exhibits 1

Memorandum of Law 2

Affirmation and Exhibits in Opposition 3

Memorandum of Law in Opposition 4

Memorandum of Law in Reply 5

Plaintiff brings her motion seeking (1) leave to reargue the Court's December 27, 2024 Decision and Order denying plaintiff's motion for summary judgment in lieu of complaint (the "Decision"); and (2) summary judgment in lieu of complaint as to liability and/or damages (a judgment of $1,265,838.78, plus default interest of 11.5% per year and late charges equal to 5% of each payment that remains past due from July 23, 2024 through the date of judgment, plus reasonable attorney's fees and other collection costs).

The Court denied plaintiff summary judgment in lieu of complaint in the Decision based on several different factors. One of these factors was the parties' dispute about the amount that defendant had already repaid. Plaintiff asserts on this motion that the Court can grant her summary judgment on liability and allow discovery to proceed on damages. Naturally, defendant disagrees, as he has other defenses that he contends should not be ignored.

Another factor was defendant's assertion that, as the Court recited in the Decision, "in August 2023, when the parties were ending their marriage, he entered into a new note with plaintiff, for $750,000, and transferred his share of the parties' marital home, worth approximately $1 million, to plaintiff," which defendant "believed [ ] represented more than any and all monies that Plaintiff could claim were due and owing to her." He claimed that it was his "understanding that the 2023 Note and the transfer of the Stamford property would make Plaintiff more than whole and there were no other claims for monies owed against me. At no time during the discussions about the 2023 Note and Stamford property transfer, did Plaintiff ever mention that there were still monies owed under the Promissory Note or that I was in default under the Promissory Note." In the Decision, the Court concluded that these factual disputes were "more than enough for this Court to deny this motion for summary judgment in lieu of complaint."

The Court also stated in the Decision that it was "deeply troubled by the issue of the statute of limitations," because although plaintiff claimed that the note was an installment note, the copy that she submitted to the Court with her motion was missing two pages. The Court thus concluded that based on plaintiff's omission, "There is no evidence to substantiate plaintiff's counsel's statements that the action is timely. For this reason as well, the Court denies the motion in its entirety." Instead of dismissing the action, however, the Court considered the moving papers to be the complaint and the opposition to be the answer.

At a Court appearance in this matter, plaintiff provided the Court with a complete copy of the note, which shows that it is in fact an installment note, with the last installment not due until September 30, 2027. For this reason, the Court withdraws the portion of the Decision that found the action to be untimely.

However, the Court finds that there are more questions of fact than the oversimplified analysis asserted by plaintiff ("whether: (i) there is a valid note; and (ii) whether there has been a default under that note."). While there is a valid note, the Court is not persuaded, at this juncture in the matter, that the note remains in default, in its entirety or in part. Accordingly, the Court grants the motion solely to the extent that the portion of the Decision that found that the action was untimely is deleted.

The foregoing constitutes the decision and order of the Court.

Dated: April 10, 2025

White Plains, New York

HON. LINDA S. JAMIESON

Justice of the Supreme Court

Linda S. Jamieson, J.