Opinion
June 8, 1987
Appeal from the Supreme Court, Queens County (Durante, J.).
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Queens County, for the entry of an appropriate judgment.
In support of its motion for summary judgment (see, CPLR 3212), the plaintiff established its causes of action as a matter of law (see, Zuckerman v City of New York, 49 N.Y.2d 557, 562; Ihmels v Kahn, 126 A.D.2d 701; Kruger Pulp Paper Sales v Intact Containers, 100 A.D.2d 894, 895) by proof of the existence of the promissory notes, guarantee and overdraft in question, and the nonpayment of each according to its terms (see, Ihmels v Kahn, supra; 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, affd 29 N.Y.2d 617). It was then incumbent upon the defendants to demonstrate, by admissible evidence, the existence of a triable issue of fact (see, Zuckerman v City of New York, supra, at 560; Ihmels v Kahn, supra; Kruger Pulp Paper Sales v Intact Containers, supra, at 895), and the defendants failed to do so. In fact, the defendants acknowledged their indebtedness to the plaintiff, and their allegation that the plaintiff should be estopped from seeking repayment because it refused to advance further funds, thereby damaging the defendants' business, did not constitute a defense and was insufficient 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; Ihmels v Kahn, 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). Mangano, J.P., Bracken, Niehoff, Kooper and Spatt, JJ., concur.