Opinion
13177 Index No. 151062/19 Case No. 2020-00983
02-23-2021
Eli NAVON, Plaintiff–Appellant, v. Brad ZACKSON, Defendant–Respondent.
Franklin R. Kaiman, Tarrytown, for appellant. Russ & Russ, P.C., Massapequa (Jay Edmond Russ of counsel), for respondent.
Franklin R. Kaiman, Tarrytown, for appellant.
Russ & Russ, P.C., Massapequa (Jay Edmond Russ of counsel), for respondent.
Kapnick, J.P., Webber, Mazzarelli, Oing, JJ.
Order, Supreme Court, New York County (Debra A. James, J.), entered January 10, 2020, which denied plaintiff's motion for summary judgment in lieu of complaint pursuant to CPLR 3213, unanimously reversed, on the law, with costs, and the motion granted.
Plaintiff established his entitlement to summary judgment in lieu of complaint by submitting a note executed by defendant, which contained the terms of the obligation and the value of the note (see Zyskind v. FaceCake Mktg. Tech., Inc., 101 A.D.3d 550, 551, 956 N.Y.S.2d 45 [1st Dept. 2012] ). Contrary to the motion court's finding, there exists only one note. Plaintiff merely annexed two copies of the second page of the note, intending to show that defendant had placed his broker license below his signature as proof that he had signed it. Plaintiff also submitted his affidavit, in which he averred that defendant had failed to repay him by the appointed time.
In opposition, defendant failed to raise a triable issue of fact, as his allegations have no bearing on the validity of the note or support in the record (see Mitsubishi Trust & Banking Corp. v. Housing Servs. Assoc., 227 A.D.2d 305, 642 N.Y.S.2d 887 [1st Dept. 1996] ). Defendant's allegations are directly contradicted by plaintiff's submissions of emails showing that defendant had requested loans, and records of wire transfers from plaintiff to defendant's wife's bank account. Defendant's allegations of fraudulent inducement are also unsupported by the record (see Banner Indus. v. Key B.H. Assoc., 170 A.D.2d 246, 565 N.Y.S.2d 456 [1st Dept. 1991] ).
Furthermore, defendant failed to meet his burden of demonstrating a lack of consideration (see Neo Universe Inc. v. Ito, 147 A.D.3d 682, 48 N.Y.S.3d 352 [1st Dept. 2017] ; compare Mann v. Green, 159 A.D.3d 545, 73 N.Y.S.3d 42 [1st Dept. 2018] ). The note was executed by the parties for payment of an antecedent obligation (see e.g. Perlstein v. Kullberg Amato Picacone/ABP, 158 A.D.2d 251, 252, 550 N.Y.S.2d 883 [1st Dept. 1990] ; Uniform Commercial Code § 3–408 ), it clearly and unambiguously recited that it was executed "for value received" (see Carlin v. Jemal, 68 A.D.3d 655, 656–657, 891 N.Y.S.2d 391 [1st Dept. 2009] ), and defendant fails to make any factual allegations disputing the existence of the antecedent debt (see Neo Universe Inc., 147 A.D.3d at 683, 48 N.Y.S.3d 352 ).