Summary
holding that “[n]otwithstanding her failure to produce the original promissory notes, the defendant could still recover pursuant to UCC 3–804”
Summary of this case from Genger v. SharonOpinion
July 9, 1990
Appeal from the Supreme Court, Westchester County (Palella, J.).
Ordered that the judgment is affirmed, with costs.
The defendant's counterclaim is based upon two promissory notes in the amounts of $150,000 and $20,000, respectively. The defendant has failed to produce both original notes although the plaintiff concedes that the promissory note for $20,000 represents a valid debt (see, Marrazzo v. Piccolo, 130 A.D.2d 463).
Notwithstanding her failure to produce the original promissory notes, the defendant could still recover pursuant to UCC 3-804 , which deals with lost, destroyed or stolen instruments and requires the requesting party to prove ownership of the notes, the circumstances of the loss and their terms (see, UCC 3-804 ; see also, Kraft v. Sommer, 54 A.D.2d 598; see generally, 3 Anderson, Uniform Commercial Code, § 3-804). The trial court properly found that the defendant failed to sustain her burden pursuant to UCC 3-804 (see, Felt v. Olson, 51 N.Y.2d 977).
We also agree with the court's finding that no evidence was adduced at trial regarding the consideration for the $150,000 note (see, UCC 3-408 ), and note that the affirmative defense of lack of consideration was properly pleaded by the plaintiff (see, CPLR 3018 [b]). Brown, J.P., Lawrence, Kooper and O'Brien, JJ., concur.