Opinion
32928/2018E
05-19-2021
STERLING NATIONAL BANK, etc., Plaintiff, v. Jason TACKMAN, Defendant.
Upon the foregoing papers, the motion of the plaintiff for summary judgment pursuant to CPLR 3212 is decided as follows.
Plaintiff moves for judgment against the defendant Jason Tackman in the amount of $152,803.99, together with statutory costs and disbursements, based on a default under a promissory note dated May 31, 2011. Plaintiff submits the affidavit of its employee, Thomas Strychalsky, that on or about July 30, 2018, defendant defaulted on the note by failing to make payments due. Further, there are no known offsets, credits or allowances due the defendant at this time, and the total sum of $152,803.99 remains due to plaintiff from defendant.
Plaintiff has established a prima facie case. A plaintiff establishes its prima facie entitlement to judgment as a matter of law with respect to a promissory note if it shows the existence of a promissory note, executed by the defendant, containing an unequivocal and unconditional obligation to repay, and the failure by the defendant to pay in accordance with the note's terms. ( Torto Note Member v. Babad , 2021 N.Y. App. Div. LEXIS 1468, *1, 2021 N.Y. Slip Op. 01438, 1, 2021 WL 900522 [2d Dept. 2021].) Once a plaintiff has established its prima facie entitlement to judgment as a matter of law, the burden then shifts to the defendant to submit evidence establishing the existence of a triable issue with respect to a bona fide defense. (Id.)
In opposition, the defendant fails to raise a triable issue of fact. Defendant alleges that in 2007, he was contacted by the Neighborhood Housing Service of New York City, Inc. ("NHS"), and persuaded to execute a Building Loan Mortgage and Note in order to convert his one-family home to a two-family home. Defendant alleges that he could not afford the payments on the mortgage, which was eventually assigned to plaintiff's predecessor. Defendant fails to establish any colorable claim of fraud, nor does he demonstrate how the 2007 NHS transaction relates to the execution of the 2011 promissory note for which recovery is sought herein. Defendant's conclusory and unsubstantiated allegations of fraud are insufficient to defeat the plaintiff's entitlement to summary judgment. ( Nunez v Channel Grocery & Deli Corp. , 124 AD3d 734, 735, 998 N.Y.S.2d 663, 664 [2d Dept. 2015] [rejecting defense of fraud in claim for recovery on promissory note].) Moreover, it appears that to the extent the NHS mortgage was assigned to Astoria, plaintiff's predecessor, it was ratified by subsequent modification agreements by the defendant by which the payments were reduced.
Any claim of lack of personal jurisdiction was waived by failing to raise it by motion within 60 days of its answer ( CPLR 3211[e] ; Anderson Kill, P.C. v. Bd. of Mgrs. of Honto 88 Condominium , 2021 NY App. Div. LEXIS 1850, 192 A.D.3d 551, 2021 WL 1094063 [1st Dept. 2021].)
The defense of lack of standing also lacks merit. Since the plaintiff was merged into its predecessor, no formal assignment is required to effectuate a transfer of assets of a merged corporation to the receiving corporation. ( Ladino v Bank of Am. , 52 AD3d 571, 572-573, 861 NYS3d 683 [2d Dept. 2008].)
Notice of default was not required. The Court finds that the remaining arguments lack merit.
Accordingly, it is hereby
ORDERED that the motion is granted.
Submit judgment on notice.
This is the Decision and Order of the Court.