Opinion
2014-04-30
Benjamin HAIMOWITZ, appellant, v. Menachem POLLAK, also known as Manny Pollak, respondent.
Gerald P. Gross, Cedarhurst, N.Y. (Elliot B. Pasik of counsel), for appellant. Mark Lewis Brecker, New York, N.Y., for respondent.
Gerald P. Gross, Cedarhurst, N.Y. (Elliot B. Pasik of counsel), for appellant. Mark Lewis Brecker, New York, N.Y., for respondent.
In an action to recover on a promissory note, commenced by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the plaintiff appeals from an order of the Supreme Court, Queens County (Kitzes, J.), entered November 16, 2012, which denied his motion for summary judgment.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action to recover on a promissory note by filing a summons with notice of motion for summary judgment in lieu of complaint pursuant to CPLR 3213. The Supreme Court properly denied the plaintiff's motion.
The plaintiff established his prima facie entitlement to judgment as a matter of law by demonstrating the existence of the promissory note executed by the defendant, the unconditional terms of repayment, and the defendant's default thereunder ( see Patel v. NJDV Hospitality, Inc., 114 A.D.3d 738, 738, 979 N.Y.S.2d 855;Baldeo v. Rambaran, 107 A.D.3d 924, 924, 966 N.Y.S.2d 905;Cooper Capital Group, Ltd. v. Densen, 104 A.D.3d 898, 960 N.Y.S.2d 917).
However, in opposition, the defendant raised triable issues of fact. “Ordinarily, courts are not involved in the oversight or approval of contracts and will enforce them unless illegal, against public policy or deficient in some other respect” ( 64th Assoc., L.L.C. v. Manhattan Eye, Ear & Throat Hosp., 2 N.Y.3d 585, 589–590, 780 N.Y.S.2d 746, 813 N.E.2d 887). “As a general rule, illegal contracts are unenforceable” ( Jara v. Strong Steel Door, Inc., 58 A.D.3d 600, 602, 871 N.Y.S.2d 363, citing Lloyd Capital Corp. v. Pat Henchar, Inc., 80 N.Y.2d 124, 127, 589 N.Y.S.2d 396, 603 N.E.2d 246). Here, the defendant raised triable issues of fact regarding the circumstances under which the promissory note was entered into and as to the possible illegality of the promissory note ( see G.K. Alan Assoc., Inc. v. Lazzari, 44 A.D.3d 95, 103, 840 N.Y.S.2d 378,affd.10 N.Y.3d 941, 862 N.Y.S.2d 855, 893 N.E.2d 133;Greenwald v. LeMon, 277 A.D.2d 202, 204, 716 N.Y.S.2d 872). The defendant also raised a triable issue of fact as to the defense of lack of consideration with respect to the promissory note ( see American Realty Corp. of N.Y. v. Sukhu, 90 A.D.3d 792, 793, 934 N.Y.S.2d 504;Samet v. Binson, 79 A.D.3d 1005, 1005–1006, 914 N.Y.S.2d 901).
The plaintiff's remaining contention is without merit ( see Tirado v. Miller, 75 A.D.3d 153, 157–158, 901 N.Y.S.2d 358).
Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment in lieu of complaint. DICKERSON, J.P., HALL, ROMAN and COHEN, JJ., concur.