| Hirsh v Brunenkant |
| 2008 NY Slip Op 04429 [51 AD3d 1258] |
| May 15, 2008 |
| Appellate Division, Third Department |
| Mary Ellen Hirsh, as Administrator of the Estate of Neal Hirsh,Deceased, Respondent, v Jennifer L. Brunenkant et al., Appellants. |
—[*1] Nolan & Heller, Albany (Justin A. Heller of counsel), for respondent.
Stein, J. Appeals (1) from an order of the Supreme Court (Hard, J.), entered September 6,2007 in Albany County, which, among other things, partially granted plaintiff's motion for partialsummary judgment, and (2) from the judgment entered thereon.
Neal Hirsh (hereinafter decedent) was the first cousin of defendant Jennifer L. Brunenkant.On December 15, 1994, Brunenkant executed a promissory note by which she agreed to paydecedent the sum of $250,000. At some time in 1995, Brunenkant formed defendantConstruction Lending Corporation (hereinafter CLC). Between 1998 and 2004, decedent loanedover $2,000,000 to CLC. CLC regularly paid interest on the loans and also made some paymentsof principal. Decedent died on May 16, 2004 without a will. Thereafter, plaintiff, decedent'smother, was appointed administrator of his estate. In November 2004, Brunenkant, as presidentof CLC, wrote to plaintiff's attorney and admitted that, as of May 2004, the outstanding balanceon loans from decedent to CLC was $1,210,212.19.[FN1] Brunenkant[*2]"shuttered" CLC in 2004 and it is no longeroperational.
Plaintiff commenced this action against defendants seeking judgment against Brunenkant forthe balance due on the first note in the amount of $250,000, plus interest from January 1, 2005,and also seeking judgment against CLC for the sums of $960,212.16,[FN2] plus interest from January 1, 2005, and $503,905, plus interest commencing from January 1,2004. Plaintiff moved for, among other things, partial summary judgment. Supreme Courtgranted plaintiff's motion on her first cause of action and found Brunenkant personally liable forthe 1994 note in the amount of $250,000, plus interest. Additionally, Supreme Court partiallygranted plaintiff summary judgment on her second cause of action, finding CLC liable andfinding that it minimally owed $955,032.19[FN3] plus interest to plaintiff, with the actual amount to be determined at trial. Supreme Court enteredjudgment accordingly. Defendants now appeal. We affirm.
"The proponent of a summary judgment motion must make a prima facie showing ofentitlement to judgment as a matter of law, tendering sufficient evidence to eliminate anymaterial issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d851, 853 [1985] [citations omitted]; seeHook v Village of Ellenville, 46 AD3d 1318, 1319 [2007]) in order to shift the burdento the nonmovant (see Dow vSchenectady County Dept. of Social Servs., 46 AD3d 1084, 1084 [2007]). To establish aprima facie case of liability on a promissory note, a plaintiff must produce the note signed by theparty from whom payment is sought and must demonstrate a default in payment (see Security Mut. Life Ins. Co. v MemberServs., Inc., 46 AD3d 1077, 1078 [2007]; New York State Higher Educ. Servs.Corp. v Barry, 267 AD2d 567, 568 [1999]). Here, plaintiff met her initial burden ofestablishing Brunenkant's liability on the $250,000 note by producing the note, together withBrunenkant's deposition testimony admitting to having personally executed the note in decedent'sfavor and having received the full proceeds of the loan. Furthermore, plaintiff established thatshe attempted to collect the debt and was unsuccessful. Thus, plaintiff established her right tosummary judgment as a matter of law, shifting the burden to defendants to raise a triable issue offact (see Candelario v Watervliet Hous.Auth., 46 AD3d 1073, 1074 [2007]; Raven Indus., Inc. v Irvine, 40 AD3d 1241, 1242 [2007]).
Defendants allege that the first $250,000 loan was used in the formation of CLC and [*3]assert that decedent considered it to be a debt of CLC. However,Brunenkant admitted that she did not form CLC until 1995, and she has produced nodocumentation to establish that CLC assumed the 1994 note, which would relieve her of anyobligation thereon. In fact, the note states on its face that it cannot be changed except in writingsigned by the lender (decedent). None of the documents presented by defendants meets thiscriteria. Thus, defendants have failed to raise a triable issue of fact with regard to Brunenkant'spersonal liability for payment on the 1994 note. Nor have they raised a triable issue of factregarding the $955,032.19 claimed as part of the second cause of action, in light of CLC'sadmission as set forth in the November 2004 letter to plaintiff's attorney. Thus, Supreme Courtproperly granted summary judgment to plaintiff on her first cause of action and properly grantedplaintiff partial summary judgment on her second cause of action.
We have reviewed defendants' remaining contentions and find them to be without merit.
Peters, J.P., Carpinello, Kane and Malone Jr., JJ., concur. Ordered that the order andjudgment are affirmed, with costs.
Footnote 1: This amount included $5,180then on deposit in an account in decedent's name. Thus, the net amount actually owed by CLC todecedent as of late 2004 was $1,205,032.19.
Footnote 2: Supreme Court subsequentlygranted plaintiff's motion to amend the amount of damages sought in this cause of action toconform to the proof.
Footnote 3: This amount represents theacknowledged net balance of $1,205,032.19 minus the $250,000 which Supreme Court foundwas owed by Brunenkant personally, since Supreme Court found an issue of fact regardingwhether that $250,000 was included in the amount which Brunenkant acknowledged on behalf ofCLC.