Opinion
2014-03004, Index No. 16261/10.
01-21-2015
Jose NUNEZ, respondent, v. CHANNEL GROCERY & DELI CORP., et al., appellants.
The Law Offices of J.A. Sanchez, P.C., New York, N.Y., for appellants. The Margiotta Law Firm, P.C., Bay Shore, N.Y. (Paul J. Margiotta of counsel), for respondent.
The Law Offices of J.A. Sanchez, P.C., New York, N.Y., for appellants.
The Margiotta Law Firm, P.C., Bay Shore, N.Y. (Paul J. Margiotta of counsel), for respondent.
Opinion In an action, inter alia, to recover on a promissory note, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Emerson, J.), dated December 18, 2013, as granted that branch of the plaintiff's motion which was for summary judgment on so much of the complaint as, inter alia, sought to recover on the promissory note.
ORDERED that the order is affirmed insofar as appealed from, with costs.
“To establish prima facie entitlement to judgment as a matter of law on the issue of liability with respect to a promissory note, a plaintiff must show the existence of a promissory note executed by the defendant and the failure of the defendant to pay in accordance with the note's terms” (Griffon V, LLC v. 11 E. 36th, LLC, 90 A.D.3d 705, 706, 934 N.Y.S.2d 472 ; see Jin Sheng He v. Sing Huei Chang, 83 A.D.3d 788, 789, 921 N.Y.S.2d 128 ; Gullery v. Imburgio, 74 A.D.3d 1022, 1022, 905 N.Y.S.2d 221 ). Once the plaintiff submits evidence establishing a prima facie case, the burden shifts to the defendant to establish, by admissible evidence, the existence of a triable issue of fact with respect to a bona fide defense (see Griffon V, LLC v. 11 E. 36th, LLC, 90 A.D.3d at 707, 934 N.Y.S.2d 472 ; Jin Sheng He v. Sing Huei Chang, 83 A.D.3d at 789, 921 N.Y.S.2d 128 ; Quest Commercial, LLC v. Rovner, 35 A.D.3d 576, 576, 825 N.Y.S.2d 766 ).
Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by submitting, among other things, the subject promissory note, which contained an unequivocal and unconditional obligation to repay, and proof of the defendants' failure to make payments on the note according to its terms (see Rachmany v. Regev, 115 A.D.3d 840, 841, 982 N.Y.S.2d 352 ; Jin Sheng He v. Sing Huei Chang, 83 A.D.3d at 789, 921 N.Y.S.2d 128 ). In opposition, the defendants failed to raise a triable issue of fact. The defendants' conclusory and unsubstantiated allegations of fraud were insufficient to defeat the plaintiff's entitlement to summary judgment (see Griffon V, LLC v. 11 E. 36th, LLC, 90 A.D.3d at 707, 934 N.Y.S.2d 472 ; Nissan Motor Acceptance Corp. v. Scialpi, 83 A.D.3d 1020, 1020–1021, 921 N.Y.S.2d 548 ; Colonial Commercial Corp. v. Breskel Assocs., 238 A.D.2d 539, 539, 657 N.Y.S.2d 940 ). Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on so much of the complaint as, inter alia, sought to recover on the promissory note.
The plaintiff's remaining contention is without merit.
MASTRO, J.P., ROMAN, SGROI and BARROS, JJ., concur.