Opinion
CA 02-01251
December 30, 2002.
Appeal from a judgment of Supreme Court, Onondaga County (Major, J.), entered November 1, 2001, which awarded plaintiff $55,000, plus interest, costs and disbursements.
MANNION COPANI, SYRACUSE (ANTHONY F. COPANI OF COUNSEL), FOR DEFENDANT-APPELLANT.
MENTER, RUDIN TRIVELPIECE, P.C., SYRACUSE (JULIAN B. MODESTI OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., PINE, HURLBUTT, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Plaintiff commenced this action by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, seeking to recover on a consolidated promissory note executed by defendant. Contrary to defendant's contention, Supreme Court properly granted plaintiff summary judgment. Plaintiff established his entitlement to summary judgment as a matter of law by submitting proof of the existence of the promissory note and that defendant defaulted in payment thereon ( see DeLuca, M.D., P.C. v. North Shore Med. Imaging, 287 A.D.2d 488). The burden then shifted to defendant to establish by admissible evidence the existence of a triable issue of fact ( see J.L.B. Equities v. Mind Over Money, 261 A.D.2d 510). In opposition to the motion, defendant contended that the note and a letter agreement referenced in the note provided that defendant would use only the source of funds described in the letter agreement to pay plaintiff the amount due on the note. The note provides that plaintiff would be "entitled" to receive payment from that source of funds. There is, however, no provision in the note restricting plaintiff's right to receive payment from that source of funds alone ( see Schmittler v. Simon, 101 N.Y. 554, 560-561). Furthermore, the note provides that defendant's liability under the note is "unconditional." Thus, defendant failed to raise a triable issue of fact, and the court properly granted plaintiff summary judgment ( see Gregorio v. Gregorio, 234 A.D.2d 512, 513).