THE EVIDENCE WHICH WAS NOT EVIDENCE

This is the case where a written receipt for cash received signed by both parties was not evidence of cash received based on one party's claim that the receipt was altered.

Rooney v. Cacoango, NYLJ October 08, 2020, Date filed: 2020-10-01, Court: City Court, Westchester, Judge: Judge Elena Goldberg-Velazquez,     Case Number: SC-0406-19:

"Claimant commenced the instant small claim for breach of contract seeking five thousand dollars ($5,000.00) allegedly paid to defendant in October 2018 to repair the roof on his home. The sole evidence that claimant submitted to support his claim that he paid defendant cash was a receipt executed by both parties on October 3, 2018, setting forth that defendant was in receipt of said cash. (Pl. Ex. 2). After an inquiry under oath by the Court, the defendant testified that he did not receive five thousand dollars ($5,000.00) cash from the claimant for work performed. Claimant did not submit documentary evidence or have witnesses testify to support his claim that he did indeed tender five thousand dollars ($5,000.00) cash to defendant. As claimant failed to demonstrate a cause of action for breach of contract for “money had and received” in that plaintiff failed to sufficiently demonstrate that he paid defendant the sum five thousand dollars ($5,000.00), claimant is not entitled to judgment herein (See, Pacella v. RSA Consultants, Inc., 164 AD3d 806 [2nd Dept, 2018]; Village of Kiryas Joel v. County of Orange, 144 AD3d 895 [2nd Dept. 2016]). Accordingly, the matter is dismissed. 

Decision:

After a bench trial the claim is dismissed. Claimant failed to satisfy a prima facie case that he was entitled to a judgment as a matter of law for breach of contract.

To satisfy a primary facie entitlement to judgment as a matter of law and recover damages for a breach of contract, a claimant “must demonstrate the existence of a contract, the [claimant's] [] performance pursuant to the contact, the defendant’s breach of its contractual obligations, and damages resulting from the breach.” (See, Village of Kiryas Joel v. County of Orange, 144 AD3d 895, 896 [2nd Dept. 2016] (plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law for breach of contract as plaintiff failed to sufficiently demonstrate that it “suffered damages as a result of that breach”) (Id). Additionally, to satisfy a breach of contract claim for “money had and received”, “a [claimant] [] must allege that: (1) the defendant received money belonging to the [claimant], (2) the defendant benefitted from the receipt of the money, and (3) under the principles of equity and good conscious, the defendant should not be permitted to keep the money.” (See, Pacella v. RSA Consultants, Inc., 164 AD3d 806 [2nd Dept. 2018] quoting Goel v. Ramachandran, 111 AD3d 783, 790 [2013]).

Here, claimant is seeking five thousand dollars ($5,000.00) for alleged money paid to defendant in 2018 for work that was not performed. Claimant alleged that defendant and he entered a contract for defendant to repair the roof on claimant’s residence. Claimant alleged he paid defendant a total of eight thousand five hundred dollars ($8,500.00).

The sole evidence that claimant submitted to support his claim that he paid defendant five thousand dollars ($5,000.00) cash was a receipt executed by both parties on October 3, 2018, setting forth that defendant was in receipt of said cash (Pl. Ex. 2). After an inquiry under oath by the Court, the defendant testified that he did not receive five thousand dollars ($5,000.00) cash from the claimant for work performed. Defendant testified he received two checks for one thousand dollars ($1,000.00) each and five hundred dollars ($500.00) cash. That amount of money (total of $2,500.00) was not in dispute by the parties as that money was paid in 2017. With respect to the five thousand dollars ($5,000.00) in dispute, claimant furnished the Court with proof of withdrawal of funds from his bank (Pl. Ex. 7) and other documentary evidence which failed to demonstrate that cash money was given to defendant (Id.).

Other than the purported receipt for the five thousand dollars ($5,000.00) allegedly signed for by defendant, claimant failed to submit any other documentary evidence or have witnesses testify that he gave defendant five thousand dollars ($5,000.00) cash. Defendant denied ever receiving five thousand dollars ($5,000.00) cash from defendant on our around October 3, 2018 and the defendant testified under oath that claimant altered the receipt and added “$5,000.00″ cash.

As claimant failed to demonstrate a cause of action for breach of contract for “money had and received” in that plaintiff failed to sufficiently demonstrate that he paid defendant the sum of five thousand dollars ($5,000.00), claimant is not entitled to judgment (See, Pacella v. RSA Consultants, Inc., 164 AD3d 806 [2nd Dept. 2018]; Village of Kiryas Joel v. County of Orange, 144 AD3d 895 [2nd Dept. 2016]). Accordingly, the matter is dismissed."