Summary
affirming summary judgment under § 3213 and explaining that " is well settled that an opponent of a summary judgment motion must avoid mere conclusory allegations and lay bare his or her proof."
Summary of this case from Hack v. StangOpinion
August 24, 1992
Appeal from the Supreme Court, Richmond County (Amann, J.).
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 the respondent is awarded one bill of costs.
The appeal from the intermediate 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). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
The plaintiff's motion papers, which include the absolute and unconditional guarantee executed by the defendants and the secured demand promissory note, are sufficient to establish its entitlement to summary judgment. It is well settled that an opponent of a summary judgment motion must avoid mere conclusory allegations and lay bare his or her proof (see, S H Bldg. Material Corp. v. Riven, 176 A.D.2d 715). The defendants' responsive papers contained bald, conclusory allegations, which, even if believable, are not enough to defeat a motion for summary judgment (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 563; Freedman v. Chemical Constr. Corp., 43 N.Y.2d 260, 264; Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255, 259). The defendants' further contention that they were fraudulently induced into executing the guarantee is unsupported by evidentiary facts and such an assertion is belied by the express provisions of the guarantee (see, Citibank v. Plapinger, 66 N.Y.2d 90; Danann Realty Corp. v. Harris, 5 N.Y.2d 317; Scarsdale Natl. Bank Trust Co. v. S.E.W. Prods., 151 A.D.2d 657).
The court correctly denied the request of the defendant Robert Jacobs for further discovery, since he failed to set forth his efforts to obtain the necessary facts to defeat the motion for summary judgment (see, Sundial Asphalt Corp. v. V.P.C. Investors Corp., 173 A.D.2d 463).
The defendants' remaining contentions are either unpreserved for appellate review or without merit. Balletta, J.P., Miller, Pizzuto and Santucci, JJ., concur.