DocketNumber: No. 90 0269431
Citation Numbers: 1992 Conn. Super. Ct. 1066
Judges: WILLIAM B. LEWIS, JUDGE
Filed Date: 2/19/1992
Status: Non-Precedential
Modified Date: 7/5/2016
In support of the motion for summary judgment, the plaintiff filed his affidavit, pointing out that he is the holder and named payee on the note in question, which was dated March 1, 1988. The motion was also accompanied by an affidavit from a John F. Bigley, who states that he "prepared" the note. In one of the memoranda of law, Mr. Bigley is identified as an attorney, but I was unable to discern by whom he was engaged. The Bigley affidavit also asserts that he "issued a check to John K. Ricci . . . in the amount of $30,000." He does not say whose $30,000 it was. The check itself is captioned "John F. Bigley Sr." with a Stratford address, and again with no indication that CT Page 1067 he was an attorney, or for whom he was acting in issuing the check.
The criteria for the granting of summary judgment were reiterated recently by the Appellate Court in Cummings Lockwood v. Gray,
In opposition to plaintiff's motion for summary judgments the defendant asserts in an affidavit that he "never received $30,000 from Donald Scinto." In a supplemental affidavit, the defendant states that the $30,000, that he acknowledges receiving by way of a check from Bigley, actually came from one Anthony Marchese, who he identifies as his business partner in the construction and sale of a house in Fairfield. The defendant claims that Marchese contributed $30,000 to the project and wanted the note from him "as proof of his contribution to the construction project." According to defendant's affidavit, however, Marchese did not want the note payable to him, and therefore used the plaintiff, and presumably Bigley as well, as a "conduit," whatever that is supposed to mean, for the transfer of funds to the project because of "personal reasons." These reasons were said to be that: "Anthony Marchese was unable to have the note in his own name because of personal financial problems." In his memorandum of law, the defendant describes this transaction as intending to satisfy a "formality at the bank which held the construction mortgage loan," later identified as the Community Federal Savings Loan Association of Bridgeport. Parenthetically, it would be interesting to see whether this was indeed only a mere "formality" of the bank's, as described by the defendant. In another strange twist to this bizarre set of facts, defendant states that Marchese said he would not attempt to collect on the note by turning it over to the plaintiff.
I believe the core issue in this case is the status of the plaintiff as the holder and payee of the note in question. According to General Statutes
Having in mind that an axiom of summary judgment is that the evidence must be viewed in the light most favorable to the nonmovant, in this case the defendant, I am not prepared to say that the plaintiff has sustained his burden of proving the nonexistence of any material fact regarding his good faith in taking the note, or whether he had notice that Marchese had a claim to the note signed by the defendant. Hence, for purposes of this motion, I am not convinced that the plaintiff is a holder in due course, and thus entitled to the benefits of General Statutes
Assuming then for this motion that the plaintiff falls within the scope of General Statutes
The motion by plaintiff for a summary judgment in his favor is denied.
So Ordered.
Dated at Bridgeport, Connecticut, this day of February, 1992.
WILLIAM B. LEWIS, JUDGE