| Kehoe v Abate |
| 2009 NY Slip Op 03977 [62 AD3d 1178] |
| May 21, 2009 |
| Appellate Division, Third Department |
| Peter R. Kehoe, Appellant, v Elda Abate et al.,Respondents. |
—[*1] Farer & Schwartz, P.C., Latham (Steven D. Farer of counsel), for respondents.
Stein, J. Appeal from an order of the Supreme Court (Platkin, J.), entered October 31, 2007in Rensselaer County, which denied plaintiff's motion for summary judgment in lieu ofcomplaint.
Plaintiff commenced this action pursuant to CPLR 3213 to recover moneys allegedly duepursuant to a note executed by defendants, Elda Abate and Mario Abate, in connection with thesale of real property in the City of Troy, Rensselaer County from plaintiff to defendant EldaAbate. Plaintiff alleged that defendants made a number of payments on the note but eventuallydefaulted, prompting him to commence this action.
In opposition to plaintiff's summary judgment motion, defendants submitted the affidavit ofElda Abate in which she alleged, among other things, that plaintiff (an attorney) had representeddefendants in the past and that she believed he was still representing them at the closing at whichthe note in question was signed. She also alleged that English is not her native language, that shedoes not understand legal terminology and that she merely signed whatever documents plaintiffrequested in reliance on plaintiff's representation and expertise. Plaintiff denies that herepresented defendants at the closing. Steven Farer, defendants' attorney in thisaction—who represented the mortgage lender at that closing—submitted anaffirmation in which he averred that plaintiff had advised him that plaintiff was representinghimself and defendants in the real estate transaction. Farer also submitted copies of documentsand correspondence [*2]received from plaintiff to corroboratethat assertion.[FN1]Plaintiff responded by submitting an "Acknowledgment of Nonrepresentation" executed by EldaAbate[FN2]on the date of the closing, which recited that plaintiff had advised her that he did not representher and that she had "chosen not to retain an attorney to represent her interests."
Supreme Court determined that defendants had raised a question of fact as to a bona fidedefense to plaintiff's claim—specifically, whether plaintiff served as defendants' attorneyin the underlying real estate transaction, causing them to rely on his representations and theattorney-client relationship in executing the note, as well as the document purporting to indicatethat Elda Abate was representing herself. As such, the court denied plaintiff's motion anddeemed the parties' papers the complaint and answer. Plaintiff appeals, challenging only thedenial of summary judgment as to Mario Abate. We affirm.
To prevail on his motion for summary judgment in lieu of complaint based on a promissorynote, plaintiff was required to present evidence that defendants executed the note and defaultedthereon (see Waehner v Northwest BayPartners, Ltd., 30 AD3d 799, 800 [2006]; Couch White v Kelly, 286 AD2d 526,527 [2001]; see also Hirsh vBrunenkant, 51 AD3d 1258, 1259 [2008]). Here, in addition to his affidavit, plaintiffproffered a copy of the note bearing defendants' signatures and other documents purporting toshow amounts due and payments made thereon. Supreme Court properly determined thatplaintiff established his prima facie entitlement to summary judgment, thus shifting the burden todefendants to raise a triable issue of fact as to a bona fide defense concerning the note (see Security Mut. Life Ins. Co. v MemberServs., Inc., 46 AD3d 1077, 1078 [2007]; Waehner v Northwest Bay Partners,Ltd., 30 AD3d at 801).
Defendants' opposition to the motion consisted of the affidavit of Elda Abate and Farer'saffirmations, with exhibits. Plaintiff argues that, inasmuch as he established his prima facieentitlement to summary judgment and Mario Abate failed to submit any opposition to themotion, he was entitled to judgment against Mario Abate. We disagree. In our view, where, ashere, the promissory note (signed by both defendants) is "inextricably intertwined" with theunderlying real estate transaction (involving only Elda Abate), the sworn statements of EldaAbate and Farer, together with the documents evidencing plaintiff's alleged representation ofdefendants and their reliance thereon—which, if proven, could undermine the underlyingtransaction—are sufficient to present a triable issue of fact effectively defeating themotion as to both defendants (see Couch White v Kelly, 286 AD2d at 528; Ingalsbe vMueller, 257 AD2d 894, 895 [1999]). Thus, we find no error in Supreme Court's denial ofplaintiff's motion as to Mario Abate.
Mercure, J.P., Spain, Kavanagh and McCarthy, JJ., concur. Ordered that the order isaffirmed, with costs.
Footnote 1: As Farer asserts that he is awitness to what is clearly a significant issue in this matter, his attention and Supreme Court'sattention are directed to Rules of Professional Conduct rule 3.7 (a) (22 NYCRR 1200.29) (effApr. 1, 2009) (formerly Code of Professional Responsibility DR 5-102 [a] [22 NYCRR 1200.21(a)]).
Footnote 2: Notably, this document was notsigned by Mario Abate.