| Gullery v Imburgio |
| 2010 NY Slip Op 05362 [74 AD3d 1022] |
| June 15, 2010 |
| Appellate Division, Second Department |
| Robert Gullery, Respondent, v Steven J. Imburgio,Appellant. |
—[*1] John Z. Marangos, Staten Island, N.Y., for respondent.
In an action to recover on a promissory note, brought by motion for summary judgment inlieu of complaint pursuant to CPLR 3213, the defendant appeals from an order of the SupremeCourt, Richmond County (Maltese, J.), dated July 23, 2009, which granted the motion.
Ordered that the order is affirmed, with costs.
The Supreme Court properly found that the plaintiff made a prima facie showing ofentitlement to judgment as a matter of law by establishing the existence of a promissory noteexecuted by the defendant, that the defendant was individually liable on the note, and that thedefendant defaulted in making payments pursuant to the note (see Pennsylvania Higher Educ. AssistanceAgency v Musheyev, 68 AD3d 736 [2009]; Verela v Citrus Lake Dev., Inc., 53 AD3d 574, 575 [2008]; Famolaro v Crest Offset, Inc., 24AD3d 604, 604-605 [2005]; Hestnar v Schetter, 284 AD2d 499, 500 [2001]). Theburden then shifted to the defendant to establish by admissible evidence the existence of a triableissue of fact with respect to a bona fide defense (see Quest Commercial, LLC v Rovner, 35 AD3d 576 [2006]; Bank of N.Y. v Vega Tech. USA,LLC, 18 AD3d 678, 679 [2005]).
The defendant's claims that there was a lack of full consideration for the loan and that hemade partial payment toward the loan were merely unsupported conclusory allegations whichwere insufficient to defeat the plaintiff's motion (see Hestnar v Schetter, 284 AD2d at500-501; MDJR Enters. v LaTorre, 268 AD2d 509, 510 [2000]). The defendant'sadditional claim that he was not individually liable on the note that he signed as "StevenImburgio, [doing business as] Wheel Concept 3" was unsupported by any evidence that WheelConcept 3 is organized as a limited liability corporation or that the defendant signed the note in arepresentative capacity (see Republic Natl. Bank of N.Y. v GSO Inc., 177 AD2d 417,418 [1991]; cf. Gottehrer v Viet-Hoa Co., 170 AD2d 648 [1991]).
Contrary to the defendant's contention, the plaintiff was entitled to bring the motion withouta prior demand as the note did not contain any time for payment (see UCC 3-108;First Natl. Bank of Waterloo v Story, 200 NY 346 [1911]; Gross v Fruchter, 230AD2d 710, 711 [1996]).[*2]
Accordingly, since the defendant failed to demonstrate,by admissible evidence, the existence of a triable issue of fact with respect to a bona fidedefense, the plaintiff's motion for summary judgment in lieu of complaint was properly granted(see Webster v Murray, 70 AD3d674, 675 [2010]; Colonial Commercial Corp. v Breskel Assoc., 238 AD2d 539[1997]; Seidman v Ungar, 246 AD2d 641, 642 [1998]). Rivera, J.P., Balkin, Leventhaland Roman, JJ., concur. [Prior Case History: 2009 NY Slip Op 31681(U).]