This is a collection action brought by Lydia A. Jordan, the widow of Philip P. Jordan, against Philip A. Jordan, the son of Philip P. Jordan. A nonjury trial was held before the Court on July 13, 2022. The Court heard the testimony of both parties and received one document into evidence: a summary of certain joint financial accounts owned by plaintiff and her late husband during his lifetime (see Ex. 1).1 At the conclusion of the trial, the Court gave the parties until September 15, 2022 to submit post-trial memoranda, including proposed findings of fact and conclusions of law. Plaintiff submitted a brief post-trial memorandum on August 24, 2022. Based upon the credible testimony and documentary evidence adduced at trial, the Court finds, concludes and orders as follows. BACKGROUND In 2018, Philip P. Jordan agreed to loan defendant the sum of $40,000. As of June 17, 2021, defendant had repaid $14,462.36, leaving an unpaid balance of $25,537.64. There is no loan agreement or other writing memorializing the terms of the loan, but defendant acknowledged at trial that he did borrow $40,000 from his father in 2018, he “defaulted” in the repayment of the loan as of June 17, 2021, and there was an unpaid balance of $25,537.64 when he stopped making payments. But neither side adduced any evidence concerning the other terms of the loan, including: the time for repayment; the minimum amount and frequency of any required installment payments; the father’s right to accelerate payment of the unpaid balance upon default; or the rate of interest, if any, charged to defendant. According to defendant, the loan came about after he and his father went to a SEFCU branch to obtain a loan in his own name, with his father to serve as co-signer. SEFCU refused to fund the loan and, instead, suggested that the father fund the loan privately from his own savings account, which had a balance of more than $70,000 at the time (see Ex. 1). Plaintiff did not specifically controvert defendant’s version of events in her trial testimony, but she does maintain that her late husband discussed the loan with her before agreeing to it. She also emphasizes that the funds provided to defendant came from joint financial accounts of which she was a co-owner (see id.). Philip P. Jordan died on September 9, 2021. On November 30, 2021, plaintiff commenced this collection action through the filing of a summons and complaint. Plaintiff alleges that she loaned defendant the sum of $40,000, and she seeks to recover the unpaid balance of $25,537.64 through a cause of action sounding in breach of contract. In his answer, defendant denied plaintiff’s allegation that she was a maker of the loan. According to defendant, the loan was extended solely by his father, Philip P. Jordan, and plaintiff was not even present at SEFCU when the loan was made. Further, defendant maintains that the decedent later agreed that they “would figure out another way to settle the remainder of the debt at a future date” (Answer, 4). Plaintiff filed her note of issue on January 10, 2022 without engaging in any disclosure, and the case was assigned a day certain for nonjury trial of July 13, 2022. ANALYSIS To succeed in her claim for breach of contract, plaintiff has burden of establishing the existence and terms of a valid contract, its breach, and resulting damages (see Clearmont Prop., LLC v. Eisner, 58 AD3d 1052, 1055 [3d Dept 2009]). “It is an elementary principle of contract law that ‘generally only parties in privity of contract may enforce terms of the contract’” (LI Equity Network, LLC v. Village in the Woods Owners Corp., 79 AD3d 26, 35 [2d Dept 2010], quoting Freeford Ltd. v. Pendleton, 53 AD3d 32, 38 [1st Dept 2008], lv denied 12 NY3d 702 [2009]). “Liability for breach of contract does not lie absent proof of a contractual relationship or privity between the parties” (Hamlet at Willow Cr. Dev. Co., LLC v. Northeast Land Dev. Corp., 64 AD3d 85, 104 [2d Dept 2009] [citations omitted], lv dismissed 13 NY3d 900 [2009]). Thus, plaintiff “may not maintain a cause of action for breach of contract against [a party] with whom [she was] not in privity” (LaBarte v. Seneca Resources Corp., 285 AD2d 974, 975 [4th Dept 2001]; see Nanomedicon, LLC v. Research Found. of State Univ. of NY, 159 AD3d 996, 999 [2d Dept 2018] ["(Defendant) demonstrated her prima facie entitlement to judgment as a matter of law dismissing the (claims) for breach of (contract)…by establishing that she was not a party to either agreement"]). Applying these principles, the Court concludes that plaintiff’s claim against defendant must be dismissed for lack of contractual privity. The credible testimony adduced at trial establishes that it was Philip P. Jordan who loaned money to defendant, and plaintiff was not a party to the loan transaction. As such, plaintiff cannot sue in her own name and right to collect the alleged debt owed to the decedent. In reaching this conclusion, the Court credits defendant’s testimony regarding the facts and circumstances under which the loan was made. Specifically, the Court finds that defendant and his father went to SEFCU for the purpose of the father co-signing a loan from the credit union, but SEFCU suggested that Philip P. Jordan fund the loan directly, a suggestion that defendant and his father accepted and acted upon immediately. Thus, while the decedent may have discussed with plaintiff the prospect of assisting his son by co-signing a loan in advance of the visit to SEFCU, the decedent did not discuss a direct loan to defendant with plaintiff before the loan was made. As such, there is no credible evidence that plaintiff was a maker or co-maker of the loan. To be sure, the Court recognizes that the funds loaned to defendant came or were derived from a SEFCU account of which plaintiff was a co-owner. But the decedent, as a fellow co-owner of the account, is presumed to have held such funds as a joint tenant with plaintiff (see Banking Law §675), thereby vesting in him a “present unconditional property interest in an undivided one half of the moneys deposited” in the account (Matter of Kleinberg v. Heller, 38 NY2d 836, 841 [1976] [Fuchsberg, J., concurring]). And even if the making of the loan caused the decedent to withdraw funds from the joint account in excess of his moiety,2 any liability for the excess withdrawals would rest with the decedent, not defendant (see Matter of Bricker v. Krimer, 13 NY2d 22, 27 [1963] ["A joint tenant who withdraws a sum in excess of his moiety is liable to the other joint tenant for the excess so withdrawn."]).3 The Court therefore concludes that plaintiff’s complaint must be dismissed for lack of contractual privity. Any suit to enforce defendant’s alleged indebtedness to his late father must be brought by the decedent’s estate or by the decedent’s personal representative. In view of this conclusion, the Court need not address the issue of whether the terms of the alleged loan agreement are sufficiently definite to be capable of judicial enforcement. “A court cannot enforce a contract unless it is able to determine what in fact the parties have agreed to’ ” (WFE Ventures, Inc. v. Mills, 139 AD3d 1157, 1160 [3d Dept 2016], quoting Carione v. Hickey, 133 AD3d 811, 811 [2d Dept 2015], lv denied 27 NY3d 909 [2016]). As stated above, there was no evidence adduced at trial concerning the repayment terms of the loan, including: (1) the time for repayment; (2) the minimum amount and frequency of any required installment payments; (3) the lender’s right to accelerate payment of the unpaid balance upon default; and (4) the applicable interest rate, if any. Relatedly, the Court observes that defendant’s answer refers to him signing loan papers at SEFCU (see Answer, 4), and plaintiff testified very firmly that the decedent “was the type he would not do anything without written signatures” (Transcript, p. 26). Thus, the Court questions whether it was supplied with all of the relevant documents concerning the loan transaction. Finally, given the absence of contractual privity, there is no need to address defendant’s claim of an oral forbearance and/or forgiveness agreement. CONCLUSION Accordingly, it is ORDERED that plaintiff’s complaint is dismissed in all respects. This constitutes the Decision & Order After Trial of the Court, the original of which is being transmitted to plaintiff’s counsel for filing and service. Dated: September 29, 2022
