Opinion
May 1, 1989
Appeal from the Supreme Court, Suffolk County (Mallon, J.).
Ordered that the order is affirmed, with costs.
The court properly exercised its discretion in denying the defendant's motion since he failed to establish that the proposed affirmative defense of release was meritorious. (CPLR 3025 [b]; Goldstein v Barco of Cal., 109 A.D.2d 817). The defendant failed to establish by an affidavit by one with personal knowledge that the check representing the consideration for the settlement was ever forwarded to the plaintiff's counsel, the plaintiff's counsel categorically denied ever receiving the check and the record is clear that the check was never negotiated (cf., Elliot v Gehen, 105 A.D.2d 1112). Therefore, under these circumstances where there was no showing of the exchange of consideration, the court correctly found that the settlement agreement was never consummated. Mangano, J.P., Brown, Lawrence, Kooper and Harwood, JJ. concur.