| Ping Ji v Malik |
| 2009 NY Slip Op 09200 [68 AD3d 835] |
| December 8, 2009 |
| Appellate Division, Second Department |
| Ping Ji et al., Appellants, v Mohammed Malik,Respondent. |
—[*1] Horing, Welikson & Rosen, P.C., Williston Park, N.Y. (Niles C. Welikson and Randi B.Gilbert of counsel), for respondent.
In an action to recover on a promissory note, the plaintiffs appeal from a judgment of theSupreme Court, Queens County (Kitzes, J.), entered March 16, 2009, which after a nonjury trialand upon the granting of the defendant's oral application, in effect, pursuant to CPLR 4401 forjudgment as a matter of law, made at the close of the plaintiffs' case, is in favor of the defendantand against them, dismissing the complaint.
Ordered that the judgment is reversed, on the law, with costs, the complaint is reinstated, andthe matter is remitted to the Supreme Court, Queens County, for a new trial.
Contrary to the defendant's contention, the plaintiffs established a prima facie case bysubmitting proof of the existence of a promissory note and the defendant's default thereon(see UCC 3-307 [2]; Levien vAllen, 52 AD3d 578 [2008]; Lorenz Diversified Corp. v Falk, 44 AD3d 910 [2007]; CentralIslip Co-op. G.L.F. Serv. v Tsantes, 17 AD2d 852 [1962]; Abrahamson v Steele, 176App Div 865 [1917]). Accordingly, the Supreme Court erred in granting the defendant's oralapplication, in effect, pursuant to CPLR 4401 for judgment as a matter of law, and a new trial iswarranted (see Central Islip Co-op G.L.F. Serv. v Tsantes, 17 AD2d at 852).
The defendant's remaining contentions are either without merit, improperly raised for thefirst time on appeal, or rendered academic by our determination. Dillon, J.P., Dickerson, Belenand Roman, JJ., concur.