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Ihmels v. Kahn

Appellate Division of the Supreme Court of New York, Second Department
Jan 26, 1987
126 A.D.2d 701 (N.Y. App. Div. 1987)

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.


Summaries of

Ihmels v. Kahn

Appellate Division of the Supreme Court of New York, Second Department
Jan 26, 1987
126 A.D.2d 701 (N.Y. App. Div. 1987)
Case details for

Ihmels v. Kahn

Case Details

Full title:JOHANNES C.C. IHMELS, Appellant, v. MARJORIE KAHN, as Executrix of LEONARD…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 26, 1987

Citations

126 A.D.2d 701 (N.Y. App. Div. 1987)

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