Opinion
12-14-2016
Estate of Augustus HANSRAJ, also known as Augustus P. Hansraj, etc., et al., respondents, v. Ragobar D. SUKHU, et al., appellants.
Warren S. Hecht, Forest Hills, NY, for appellants. Kelly Lucas & Pacifico, LLP, Locust Valley, NY (Robert G. Lucas of counsel), for respondents.
Warren S. Hecht, Forest Hills, NY, for appellants.
Kelly Lucas & Pacifico, LLP, Locust Valley, NY (Robert G. Lucas of counsel), for respondents.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.
In an action to recover on five promissory notes, commenced by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendants appeal from (1) an order of the Supreme Court, Rockland County (Alfieri, Jr., J.), dated September 15, 2014, which granted the plaintiffs' motion for summary judgment in lieu of complaint, and (2) a judgment of the same court dated December 2, 2014, which, upon the order, is in favor of the plaintiffs and against them in the total sum of $839,520.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiffs.
The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).
"Pursuant to CPLR 3213, a party may obtain accelerated relief by moving for summary judgment in lieu of complaint, provided that the action is ‘based upon an instrument for the payment of money only or upon any judgment’ " (Von Fricken v. Schaefer, 118 A.D.3d 869, 870, 988 N.Y.S.2d 254, quoting CPLR 3213 ). "A promissory note is an instrument for the payment of money only, provided that it contains an unconditional promise by the borrower to pay the lender over a stated period of time" ( Lugli v. Johnston, 78 A.D.3d 1133, 1134, 912 N.Y.S.2d 108 ). " ‘To establish prima facie entitlement to judgment as a matter of law on the issue of liability with respect to a promissory note, a plaintiff must show the existence of a promissory note executed by the defendant and the failure of the defendant to pay in accordance with the note's terms' " (Nunez v. Channel Grocery & Deli Corp., 124 A.D.3d 734, 734–735, 998 N.Y.S.2d 663, quoting Griffon V, LLC v. 11 E. 36th, LLC, 90 A.D.3d 705, 706, 934 N.Y.S.2d 472 ; see Sun Convenient, Inc. v. Sarasamir Corp., 123 A.D.3d 906, 907, 999 N.Y.S.2d 432 ; Patel v. NJDV
Hospitality, Inc., 114 A.D.3d 738, 739, 979 N.Y.S.2d 855 ; Jin Sheng He v. Sing Huei Chang, 83 A.D.3d 788, 921 N.Y.S.2d 128 ). "Once the plaintiff establishes its prima facie entitlement to judgment as a matter of law, the burden shifts to the defendant ... to establish the existence of a triable issue of fact with respect to a bona fide defense" (Sun Convenient, Inc. v. Sarasamir Corp., 123 A.D.3d at 907, 999 N.Y.S.2d 432 ; see Gullery v. Imburgio, 74 A.D.3d 1022, 905 N.Y.S.2d 221 ). However, conclusory and unsubstantiated allegations of defenses to payment on a note are insufficient to defeat the plaintiff's entitlement to summary judgment (see Nunez v. Channel Grocery & Deli Corp., 124 A.D.3d at 735, 998 N.Y.S.2d 663 ; Sun Convenient, Inc. v. Sarasamir Corp., 123 A.D.3d at 908, 999 N.Y.S.2d 432 ; Rachmany v. Regev, 115 A.D.3d 840, 841, 982 N.Y.S.2d 352 ; Gullery v. Imburgio, 74 A.D.3d at 1022–1023, 905 N.Y.S.2d 221 ).
Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law by submitting, among other things, the five promissory notes, which each contained an unequivocal and unconditional obligation to pay, and proof of the defendants' failure to make payments on the notes in accordance with their terms (see Preciosa USA, Inc. v. Weiss & Biheller, MDSE, Corp., 127 A.D.3d 1156, 5 N.Y.S.3d 909 ; Nunez v. Channel Grocery & Deli Corp., 124 A.D.3d at 735, 998 N.Y.S.2d 663 ; Jin Sheng He v. Sing Huei Chang, 83 A.D.3d at 789, 921 N.Y.S.2d 128 ). In opposition, the defendants failed to raise a triable issue of fact. Their conclusory and unsubstantiated assertions that the decedent, Augustus Hansraj, and the defendant Ragobar D. Sukhu had entered into a joint venture to invest in real estate were insufficient to defeat the plaintiffs' entitlement to summary judgment (see Preciosa USA, Inc. v. Weiss & Biheller, MDSE, Corp., 127 A.D.3d at 1156, 5 N.Y.S.3d 909 ; Nunez v. Channel Grocery & Deli Corp., 124 A.D.3d at 735, 998 N.Y.S.2d 663 ; Griffon V, LLC v. 11 E. 36th, LLC, 90 A.D.3d at 707, 934 N.Y.S.2d 472 ).
The defendants' remaining contentions are either without merit or improperly raised for the first time on appeal.
Accordingly, the Supreme Court properly granted the plaintiffs' motion for summary judgment in lieu of complaint pursuant to CPLR 3213.