Opinion
March 20, 1989
Appeal from the Supreme Court, Nassau County (Robbins, J.).
Ordered that the order is reversed, on the law, with costs, the motion for summary judgment in lieu of complaint is granted, and the matter is remitted to the Supreme Court, Nassau County, for the entry of an appropriate judgment.
As stated by the Court of Appeals in Interman Indus. Prods. v R.S.M. Electron Power ( 37 N.Y.2d 151, 155): "The most cogent analysis of the standard to be applied in ascertaining whether an instrument qualifies for CPLR 3213 treatment was enunciated in Seaman-Andwall Corp. v. Wright Mach. Corp. ( 31 A.D.2d 136, affd 29 N.Y.2d 617 * * *) wherein it was stated that if a prima facie case would be made out by the instrument and a failure to make the payments called for by its terms, the moving party would be entitled to summary judgment unless the other party came forward with evidentiary proof sufficient to raise an issue as to the defenses to the instrument". Under these guidelines, the plaintiff herein was entitled to judgment in his favor.
The document dated September 27, 1984 being sued upon is a clear, unambiguous and unconditional promise to pay specified sums on specified dates. The references to prior agreements in the "Whereas" clause do not alter or qualify the defendant's obligation to pay (see, Schwartz v. Turner Holdings, 139 A.D.2d 458; St. John Assocs. Engrs. v. Chase Architectural Assocs., 106 A.D.2d 743), nor do they incorporate those prior agreements into the note (cf., Tonkonogy v. Seidenberg, 63 A.D.2d 587). To determine the amount payable on the note it is unnecessary to look beyond the note itself (cf., Tradition N. Am. v. Sweeney, 133 A.D.2d 53). Clearly, the document dated September 27, 1984 was an instrument for the payment of money only within the meaning of CPLR 3213.
The plaintiff made a prima facie showing of his entitlement to a judgment in his favor by proof of existence of the note and proof of nonpayment according to its terms. It was then incumbent upon the defendant to demonstrate, by admissible evidence, the existence of a genuine triable issue of fact. The defendant failed to do this.
The note herein sets forth an unconditional obligation by the defendant to pay, and the defendant's conclusory assertion that it was never intended for the note to be paid and was merely a scheme to deceive the plaintiff's creditors is insufficient to defeat that obligation (see, Conolog Corp. v. P.R. Elecs. Export, 140 A.D.2d 190; see also, Faustini v. Darth Provisions Co., 131 A.D.2d 809). Nor was there a failure of consideration insofar as the defendant had received the stock for which he had to pay nearly 10 years prior to the signing of the note. Indeed, the note was merely in furtherance of the prior stock transfer agreement between the parties which the defendant has not challenged. Brown, J.P., Eiber, Kooper and Balletta, JJ., concur.