Opinion
Submitted September 24, 2001.
October 9, 2001.
In an action to recover on a promissory note brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, where the motion papers were converted to pleadings, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Austin, J.), dated September 18, 2000, as denied his motion.
Robert F. Van der Waag, Garden City, N.Y., for appellant.
Harvey S. Barer, P.C., Garden City, N.Y., for respondents.
Before: MYRIAM J. ALTMAN, J.P., LEO F. McGINITY, HOWARD MILLER and SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Nassau County, for entry of an appropriate judgment.
The plaintiff made a prima facie showing of entitlement to judgment as a matter of law by submitting proof of the promissory note and that the defendants had defaulted in payment thereon (see, McCann v. Cronin, 276 A.D.2d 472; Badenhop v. Badenhop, 271 A.D.2d 386). The burden then shifted to the defendants to establish by admissible evidence the existence of a triable issue of fact (see, McCann v. Cronin, supra; J.L.B. Equities v. Mind Over Money, 261 A.D.2d 510; Judarl v. Cycletech, Inc., 246 A.D.2d 736). The defendants failed to raise a triable issue with respect to their allegations that the plaintiff breached a restrictive covenant (see, Badenhop v. Badenhop, supra; cf., Vecchio v. Colangelo, 274 A.D.2d 469; Cohen v. Marvlee, Inc., 208 A.D.2d 792). Accordingly, the plaintiff was entitled to summary judgment.