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R-H-D Construction Corporation v. Miller

Appellate Division of the Supreme Court of New York, Third Department
Dec 7, 1995
222 A.D.2d 802 (N.Y. App. Div. 1995)

Opinion

December 7, 1995

Appeal from the Supreme Court, Albany County (Spain, J.).


Plaintiff, defendant's former employer, served a summons with notice upon defendant for breach of contract arising from nonpayment of an alleged $6,000 debt evidenced by a promissory note. Plaintiff thereafter served a motion for summary judgment in lieu of complaint pursuant to CPLR 3213 alleging that defendant, having paid only $1,000, was in default and owed him the remaining $5,000 plus interest.

In opposition thereto, defendant claimed that upon making attempts to repay the debt, plaintiff assured him "that such debt was cancelled as a bonus for [his] service and employment with [p]laintiff corporation". Supreme Court denied plaintiff's motion for summary judgment as well as its subsequent motion for reargument. Plaintiff appeals both orders.

It is well settled that a promissory note, as an instrument for the payment of money only, is entitled to the expedited procedure detailed in CPLR 3213 ( see, e.g., Lavelle v Urbach, Kahn Werlin, 198 A.D.2d 751; Grasso v Shutts Agency, 132 A.D.2d 768, appeal dismissed 70 N.Y.2d 797). Once a prima facie case is established, indicating an execution of the note and a default in payment ( see, Grasso v Shutts Agency, supra), only "proof showing the existence of a triable issue of fact with respect to a bona fide defense against the note will defeat * * * [the] motion" ( Lavelle v Urbach, Kahn Werlin, supra, at 751).

Here, defendant contends that the debt secured by the promissory note was discharged by oral agreement and supported by executed consideration ( see, UCC 3-601 ; Bank of U.S. v Manheim, 264 N.Y. 45, 49; Conte Cadillac v C.A.R.S. Purch. Serv., 126 A.D.2d 621, 623). Pursuant to his employment relationship with plaintiff, defendant represents that he regularly received bonuses which included a car and money for trips to Hawaii and Florida. Defendant asserts that when he tendered the repayment of the outstanding debt either in December 1990 or January 1991, he was assured by plaintiff that the debt was discharged since he was to receive a bonus for that year which would now no longer have to be paid. Thus, there was adequate consideration at such time to orally discharge the debt.

We find that Supreme Court, confronted with conflicting affidavits addressing the scope of the parties' employment relationship ( see, Mirchel v RMJ Sec. Corp., 205 A.D.2d 388, 390), properly determined that an arguable defense has been raised such that a denial of summary judgment would be proper.

As to the denial of the motion to reargue, such order is not appealable ( see, Spa Realty Assocs. v Springs Assocs., 213 A.D.2d 781, 783; Matter of Albany Community Dev. Agency v Abdelgader, 205 A.D.2d 905; Stuart v Ellis Hosp., 198 A.D.2d 559, 561; Lindsay v Funtime, Inc., 184 A.D.2d 1036).

Cardona, P.J., Mercure, Crew III and White, JJ., concur. Ordered that the order entered May 20, 1994 is affirmed, with costs. Ordered that the appeal from the order entered October 6, 1994 is dismissed.


Summaries of

R-H-D Construction Corporation v. Miller

Appellate Division of the Supreme Court of New York, Third Department
Dec 7, 1995
222 A.D.2d 802 (N.Y. App. Div. 1995)
Case details for

R-H-D Construction Corporation v. Miller

Case Details

Full title:R-H-D CONSTRUCTION CORPORATION, Appellant, v. ROBERT MILLER, Respondent

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

Date published: Dec 7, 1995

Citations

222 A.D.2d 802 (N.Y. App. Div. 1995)
634 N.Y.S.2d 846

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