Zitel Corp. v. Fonar Corp.

Full title: ZITEL CORPORATION, Appellant, v. FONAR CORPORATION, Respondent

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

Date published: Dec 5, 1994

210 A.D.2d 221 (N.Y. App. Div. 1994)

619 N.Y.S.2d 964

Opinion

December 5, 1994

Appeal from the Supreme Court, Suffolk County (Lama, J.).

Ordered that the order is reversed, on the law, with costs, the plaintiff's motion for summary judgment in lieu of a complaint is granted, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of an appropriate judgment.

The plaintiff established prima facie its entitlement to judgment as a matter of law by producing the promissory note executed by the defendant and by establishing that the defendant defaulted on the note (see, Mlcoch v Smith, 173 A.D.2d 443, 444). It was then incumbent upon the defendant to demonstrate, by admissible evidence, the existence of a genuine triable issue of fact. The defendant's production of a partially executed assignment agreement was insufficient to defeat the plaintiff's motion for summary judgment in lieu of a complaint. Accordingly, the Supreme Court should have granted the plaintiff's motion (see, CPLR 3213). Bracken, J.P., Balletta, Ritter, Pizzuto and Florio, JJ., concur.