Opinion
June 22, 1976
Order, Supreme Court, New York County, entered January 23, 1976, denying plaintiff's motion for summary judgment, pursuant to CPLR 3213, unanimously reversed, on the law, with $60 costs and disbursements to appellant, and the motion granted. On the record before us, defendants' belated effort to characterize the additional $90,000 advanced by plaintiff as a nonrefundable investment rather than a loan, is insufficient to overcome the overwhelming documentary evidence to the contrary. Accordingly, since no genuine triable issues were raised, summary judgment should have been granted. (Cf. Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 225.) Settle order on notice.
Concur — Markewich, J.P., Murphy, Birns, Capozzoli and Nunez, JJ.