Opinion
April 20, 1992
Appeal from the Supreme Court, Westchester County (Gurahian, J.).
Ordered that the judgment is affirmed, with costs.
By motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the plaintiff commenced this action to recover upon a promissory note for the payment of money only. The defendant does not deny the making of the note or that no payments were made thereunder. However, in opposing the plaintiff's motion for summary judgment, the defendant alleged that, despite the note's recitation that it was given "for value received," there was actually no consideration. In reply, the plaintiff argued that, regardless of the defendant's allegation, the parol evidence rule prevents the defendant from varying the clear language of the instrument.
It is undisputed that the plaintiff has established a prima facie case by proof of the note and a failure to make payments called for by its terms (see, Gateway State Bank v Shangri-La Private Club for Women, 113 A.D.2d 791, affd 67 N.Y.2d 627; see also, Seaman-Andwall Corp. v Wright Mach. Corp., 31 A.D.2d 136, 137, affd 29 N.Y.2d 617).
The plaintiff has submitted both the note and a subsequent letter from the defendant indicating that the note was given for consideration. This documentary evidence is countered only by the defendant's allegations that there was no consideration and that the note was executed because of the plaintiff's tax difficulties. In view of the documentary evidence indicating that there was consideration, the defendant's allegations fail to raise a triable issue of fact. Moreover, the defendant's allegation that the note was executed only to assist the plaintiff with her "tax difficulties" is not sufficient to overcome the plaintiff's documentary evidence. In order to prevent summary judgment it was at least necessary for the defendant to explain what these "tax difficulties" were and how the execution of the note would have assisted the plaintiff (see, Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255, 259).
We note that defendant waived his objection to the court's jurisdiction over his person since he opposed the plaintiff's motion for summary judgment in lieu of complaint on the merits without raising any jurisdictional objection (see, CPLR 3211 [e]; Katz v Katz, 68 A.D.2d 536). Mangano, P.J., Miller, O'Brien and Santucci, JJ., concur.