Opinion
2013-03-27
COOPER CAPITAL GROUP, LTD, respondent, v. Lawrence DENSEN, appellant.
The Weinstein Group, P.C., Hauppauge, N.Y. (Lloyd J. Weinstein of counsel), for appellant. Weber & Pullin, LLP, Woodbury, N.Y. (Allan L. Pullin of counsel), for respondent.
The Weinstein Group, P.C., Hauppauge, N.Y. (Lloyd J. Weinstein of counsel), for appellant. Weber & Pullin, LLP, Woodbury, N.Y. (Allan L. Pullin of counsel), for respondent.
In an action to recover on a promissory note, brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Emerson, J.), dated April 27, 2011, as granted the motion for summary judgment.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the plaintiff's motion for summary judgment in lieu of complaint is denied, and the motion and answering papers are deemed to be the complaint and answer, respectively.
The plaintiff made a prima facie showing of entitlement to judgment as a matter of law by demonstrating the existence of a promissory note executed by the defendant, the unconditional terms of repayment, and the defendant's default thereunder ( see Weissman v. Sinorm Deli, 88 N.Y.2d 437, 444, 646 N.Y.S.2d 308, 669 N.E.2d 242;Sound Shore Med. Ctr. of Westchester v. Maloney, 96 A.D.3d 823, 823, 947 N.Y.S.2d 317;Haselnuss v. Delta Testing Labs., 249 A.D.2d 509, 671 N.Y.S.2d 361;East N.Y. Sav. Bank v. Baccaray, 214 A.D.2d 601, 625 N.Y.S.2d 88). However, in response, the defendant raised a triable issue of fact as to the validity of his signature on the note by pointing out several alleged irregularities in the document's signature page and by submitting an affidavit on his own behalf ( see Wegweiser v. Wegweiser, 205 A.D.2d 616, 616, 614 N.Y.S.2d 287). While the defendant did not submit an affidavit by a handwriting expert, where, as here, the defendant has provided more than his own unsubstantiated, conclusory allegations of fraud, expert testimony is not strictly necessary, and would be more appropriate for proof at trial ( see Diplacidi v. Gruder, 135 A.D.2d 395, 522 N.Y.S.2d 1;cf. European Am. Bank v. Syosset Autorama, 204 A.D.2d 266, 267, 611 N.Y.S.2d 585).
Accordingly, the Supreme Court should have denied the plaintiff's motion for summary judgment in lieu of complaint.