| American Realty Corp. of NY v Sukhu |
| 2011 NY Slip Op 09251 [90 AD3d 792] |
| December 20, 2011 |
| Appellate Division, Second Department |
| American Realty Corp. of NY et al., Appellants, v RagobarD. Sukhu, Respondent. |
—[*1] Lowell B. Davis, Carle Place, N.Y. (Harvey A. Schweiger of counsel), forrespondent.
In an action to recover on a promissory note, commenced by motion for summary judgmentin lieu of complaint pursuant to CPLR 3213, the plaintiffs appeal, as limited by their brief, fromso much of an order of the Supreme Court, Queens County (Lebowitz, J.), entered July 19, 2010,as, upon reargument, adhered to an original determination in an order of the same court enteredApril 8, 2010, denying the plaintiffs' motion for summary judgment in lieu of complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
"To establish prima facie entitlement to judgment as a matter of law with respect to apromissory note, a plaintiff must show the existence of a promissory note, executed by thedefendant, containing an unequivocal and unconditional obligation to repay, and the failure bythe defendant to pay in accordance with the note's terms" (Lugli v Johnston, 78 AD3d 1133, 1135 [2010]; see Gullery v Imburgio, 74 AD3d1022, 1022 [2010]). Once the plaintiff submits evidence establishing these elements, theburden then shifts to the defendant to submit evidence establishing the existence of a triable issuewith respect to a bona fide defense (seeJin Sheng He v Sing Huei Chang, 83 AD3d 788, 789 [2011]).
Here, the Supreme Court denied the plaintiffs' motion for summary judgment in lieu ofcomplaint. In the order appealed from, the Supreme Court then granted the plaintiffs' subsequentmotion for leave to reargue, and, upon reargument, adhered to its original determination. Weaffirm the order made upon reargument insofar as appealed from.
The plaintiffs established their prima facie entitlement to judgment as a matter of law bysubmitting the subject promissory note, which was signed by the defendant and which containedan unequivocal and unconditional obligation to repay, and by showing that the defendant failedto pay in accordance with the note's terms. However, in opposition to the plaintiffs' prima facieshowing, the defendant raised a triable issue of fact with respect to the bona fide defense of lackof consideration for the note (see Sametv Binson, 79 AD3d 1005, 1005-1006 [2010]; Mastro v Carroll, 296 AD2d 802,802-803 [2002]; Cafaro v Squitieri, 290 AD2d 472 [2002]; Manufacturers HanoverTrust Co. v L.N. [*2]Props., 174 AD2d 383 [1991]).
Accordingly, upon reargument, the Supreme Court properly adhered to its originaldetermination denying the plaintiffs' motion for summary judgment in lieu of complaint.Angiolillo, J.P., Dickerson, Lott and Miller, JJ., concur.