Opinion
April 15, 1994
Appeal from the Supreme Court, Onondaga County, Mordue, J.
Present — Green, J.P., Pine, Lawton, Callahan and Boehm, JJ.
Order unanimously affirmed with costs. Memorandum: Supreme Court properly granted plaintiff's cross motion for summary judgment based on proof of the existence of the promissory note and nonpayment (see, Alicanto v Woolverton, 142 A.D.2d 703, lv denied 73 N.Y.2d 702; Grasso v Shutts Agency, 132 A.D.2d 768, appeal dismissed 70 N.Y.2d 797). The parol evidence proffered by defendant was an impermissible attempt to alter the express terms of that unambiguous note and was insufficient to defeat summary judgment (see, Kornfeld v NRX Technologies, 93 A.D.2d 772, affd 62 N.Y.2d 686; Alicanto v Woolverton, supra; Grasso v Shutts Agency, supra). Supreme Court's earlier denial without prejudice of plaintiff's motion for summary judgment in lieu of complaint did not preclude plaintiff's cross motion (see, Technical Tape v Spray-Tuck, Inc., 146 A.D.2d 517, 518, lv dismissed 74 N.Y.2d 791).