| Theresa Striano Revocable Trust v Hoffman |
| 2010 NY Slip Op 02544 [71 AD3d 993] |
| March 23, 2010 |
| Appellate Division, Second Department |
| Theresa Striano Revocable Trust, Respondent, v Paul J.Hoffman, Appellant. (And a Third-Party Action.) |
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In an action, inter alia, to recover damages for breach of a loan agreement, the defendantappeals from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered August18, 2009, which granted the plaintiff's motion for summary judgment on so much of thecomplaint as sought to recover damages for breach of a loan agreement in the principal sum of$100,000.
Ordered that the order is affirmed, with costs.
In September 2003 the plaintiff and the defendant entered into a loan agreement (hereinafterthe agreement) whereby the plaintiff agreed to loan the defendant the sum of $100,000. InDecember 2008 the plaintiff commenced this action, inter alia, to recover damages for breach ofthe agreement. The Supreme Court granted the plaintiff's motion for summary judgment on somuch of the complaint as sought to recover damages for breach of the Agreement in the principalsum of $100,000. We affirm.
The plaintiff established its prima facie entitlement to judgment as a matter of law bysubmitting evidence demonstrating the existence of the Agreement and the defendant's defaultthereunder (see Fleet Bank v M & Z Headwear, 308 AD2d 507 [2003]). In opposition,the defendant failed to raise a triable issue of fact (see generally Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]). Accordingly, the Supreme Court properly granted theplaintiff's motion for summary judgment.
Contrary to the defendant's contention, the plaintiff's motion was not premature, as thedefendant failed to offer an evidentiary basis to suggest that discovery might lead to relevantevidence and that facts essential to justify opposition to the motion were exclusively within theknowledge and control of the plaintiff and the third-party defendants (see Corwin v HeartShare Human Servs. of N.Y., 66 AD3d 814, 815 [2009]; Kimyagarov v Nixon TaxiCorp., 45 AD3d 736, 737 [2007]). "The mere hope or speculation that evidence sufficient todefeat a motion for summary judgment may be uncovered during the discovery process isinsufficient to deny the motion" (Lopez v WS Distrib., Inc., 34 AD3d 759, 760 [2006]).[*2]
The defendant's remaining contention is without merit.Mastro, J.P., Leventhal, Lott and Austin, JJ., concur.