Levien v Allen

2008 NY Slip Op 05486

Decided on June 10, 2008

Appellate Division, Second Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 10, 2008
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
ROBERT A. SPOLZINO, J.P.
JOSEPH COVELLO
THOMAS A. DICKERSON
RANDALL T. ENG, JJ.
2007-00274
(Index No. 5282/05)






Rafael Declet, New York, N.Y. (Gilbert Azafrani, pro hac vice, of
counsel), for appellants.
Kirschenbaum & Kirschenbaum, P.C., Garden City, N.Y.
(Kenneth Kirschenbaum and Paul J.
Tramontano of counsel), for respondent.


DECISION & ORDER

In an action to recover on three promissory notes, the defendants appeal from a judgment of the Supreme Court, Nassau County (Bucaria, J.), entered November 9, 2006, which, upon a decision of the same court dated October 2, 2006, made after a nonjury trial, is in favor of the plaintiff and against them in the principal sum of $426,865.14.

ORDERED that the judgment is affirmed, with costs.

The Supreme Court properly awarded judgment to the plaintiff. The plaintiff established a prima facie case by submitting proof of the existence of the three promissory notes and the defendants' default on each note (see Lorenz Diversified Corp. v Falk, 44 AD3d 910; Marinis v Scherr, 306 AD2d 448). The defendants failed to controvert the evidence presented by the plaintiff (see Lorenz Diversified Corp. v Falk, 44 AD3d 910). Furthermore, the defendants failed to establish the affirmative defenses of lack of consideration (see Anand v Wilson, 32 AD3d 808, 809; see generally Mencher v Weiss, 306 NY 1, 8) or usury (cf. Hicki v Choice Cap. Corp., 264 AD2d 710, 711). The defendants also failed to establish that the plaintiff converted the loans to a capital contribution (cf. Security Mut. Life Ins. Co. v Member Servs., Inc., 46 AD3d 1077, 1078; J.L.B. Equities v Mind Over Money, Ltd., 261 AD2d 510).

The defendants' remaining contentions are either improperly raised for the first time on appeal or without merit.
SPOLZINO, J.P., COVELLO, DICKERSON and ENG, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court