Opinion
2001-07908
Argued March 28, 2002.
April 29, 2002.
In an action to recover on a promissory note brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendants appeal from so much of an order of the Supreme Court, Orange County (Owen, J.), dated July 25, 2001, as granted the motion.
Joseph J. Haspel, Goshen, N.Y., for appellants.
Fabricant Lipman, Goshen, N.Y. (Neal D. Frishberg and Marla B. Rubin of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., WILLIAM D. FRIEDMANN, HOWARD MILLER, ROBERT W. SCHMIDT, JJ.
ORDERED that the order is affirmed insofar as appealed from, with costs.
CPLR 3213 allows a plaintiff to commence an action "based upon an instrument for the payment of money only" by serving a summons and notice of motion for summary judgment and supporting papers in lieu of a complaint. "[A] document comes within CPLR 3213 'if a prima facie case would be made out by the instrument and a failure to make the payments called for by its terms'" (Weissman v. Sinorm Deli, 88 N.Y.2d 437, 444, quoting Interman Indus. Prods. v. R.S.M. Electron Power, 37 N.Y.2d 151, 155; see Diversified Investors Corp. v. DiversiFax, Inc., 239 A.D.2d 231, 233). In the instant case, the plaintiff made a prima facie showing of entitlement to judgment as a matter of law by proving the existence of the subject note and nonpayment according to its terms (see James DeLuca, M.D., P.C. v. North Shore Med. Imaging, 287 A.D.2d 488; J.L.B. Equities v. Mind Over Money, 261 A.D.2d 510; Gregorio v. Gregorio, 234 A.D.2d 512, 513). Once the plaintiff met this burden, it was incumbent upon the defendants "to establish, by admissible evidence, that a triable issue of fact exists" (Allstate Fin. Corp. v. Access Bag N Pack, 245 A.D.2d 325, 326). The defendants' claim that summary judgment should be denied because the subject note is "inextricably intertwined" (Vecchio v. Colangelo, 274 A.D.2d 469, 471; Cohen v. Marvlee, Inc., 208 A.D.2d 792; see Ingalsbe v. Mueller, 257 A.D.2d 894, 895) with a separate lease which the plaintiff allegedly breached is without merit since the lease did not require "any additional performance by the [plaintiff] as a condition precedent to its repayment or otherwise alter the defendants' repayment obligation" (East N.Y. Sav. Bank v. Baccaray, 214 A.D.2d 601, 602).
The defendants' remaining contentions are not preserved for appellate review and, in any event, are without merit.
SANTUCCI, J.P., FRIEDMANN, H. MILLER and SCHMIDT, JJ., concur.