Opinion
January 26, 1987
Appeal from the Supreme Court, Orange County (Ferraro, J.).
Ordered that Marjorie Kahn, as executrix of Leonard Kahn, is substituted as the party defendant, Leonard Kahn having died during the pendency of this appeal; and is is further,
Ordered that the order is reversed, on the law, the motion is granted, and the matter is remitted to the Supreme Court, Orange County, for entry of an appropriate judgment; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
In support of his motion for summary judgment in lieu of complaint (see, CPLR 3213), the plaintiff established his cause of action as a matter of law (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562; Kruger Pulp Paper Sales v. Intact Containers, 100 A.D.2d 894, 895) by proof of the promissory notes in question and of nonpayment according to their terms (see, Gateway State Bank v. Shangri-La Private Club for Women, 113 A.D.2d 791, affd 67 N.Y.2d 627; Badische Bank v. Ronel Sys., 36 A.D.2d 763; Seaman-Andwall Corp. v. Wright Mach. Corp., 31 A.D.2d 136, 137, appeals dismissed 28 N.Y.2d 716, affd 29 N.Y.2d 617). It was then incumbent upon the defendant to demonstrate, by admissible evidence, the existence of a triable factual issue (see, Zuckerman v. City of New York, supra, at p 560; Kruger Pulp Paper Sales v. Intact Containers, supra, at p 895). However, although the defendant alleged that there were several valid defenses and counterclaims including, inter alia, failure of consideration, breach of contract and fraud, those allegations amounted to no more than unsubstantiated, conclusory assertions which were not sufficient to defeat the motion (see, Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255, 259; Gateway State Bank v Shangri-La Private Club for Women, supra; Great Neck Car Care Center v. Artpat Auto Repair Corp., 107 A.D.2d 658, 659, lv dismissed 65 N.Y.2d 897; Mayer v. McBrunigan Constr. Corp., 105 A.D.2d 774). Moreover, the defendant's assertions were, for the most part, precluded by the terms of the parties' stock purchase agreement (see, Seaman-Andwall Corp. v. Wright Mach. Corp., supra, at p 139). Mangano, J.P., Bracken, Brown and Eiber, JJ., concur.