Summary Judgment Denied To Plaintiffs, Granted In Part To One Defendant, In Action On Alleged Loan

On August 27, 2024, Justice Andrew Borrok denied summary judgment to plaintiffs and granted it in part to one defendant in an action to collect on an alleged $9 million loan. The case is Elie Tahari v. Shelly Narkis, Index No. 650671/2021.

That defendant Shelly Narkis had received $9 million from plaintiff Elie Tahari was not in dispute. The litigation concerned whether the money represented a new loan, as Tahari and his company alleged, or repayment of a prior obligation, as claimed by defendants.

Although Tahari had met his prima facie burden of demonstrating the absence of material issues of fact on his fraud and contract claims by showing that Narkis had misrepresented, inter alia, the reason for the loan and had failed to repay it, Justice Borrok denied summary judgment because Narkis had rebutted that showing. However, she did so by relying on an affidavit from non party Ofer Resles, whom Narkis had failed to identify in response to an interrogatory calling for the identification of witnesses with relevant knowledge. Resles’ late affidavit stated that he had witnessed a meeting, before Tahari had sent the $9 million to Narkis, where Tahari had acknowledged that he owed Narkis that very amount..

Justice Borrok addressed that failure by requiring that Narkis promptly produce Resles for deposition, and that Resles first provide “fulsome discovery”. Slip op., p. 4, n. 1. Moreover, “[i]f Resles fails to produce all relevant documents, Elie Tahari may move to preclude him from testifying at trial based on the substantial prejudice of this newly identified and adduced evidence [and] . . . if based on what discovery reveals, a motion seeking renewal or reargument is appropriate, leave is granted to Elie Tahari to file an order to show cause seeking the same.” Id.

Defendant Narkis’ was granted partial summary judgment dismissing plaintiffs’ promissory estoppel and unjust enrichment claims as duplicative of the fraud and contract claims and as time barred. But defendants’ motion premised on the claimed time bar was otherwise denied, as was its motion alleging that plaintiffs lacked standing. Id., pp. 12-14.

Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning fraud, contract or loan litigation.