| Sound Shore Med. Ctr. of Westchester v Maloney |
| 2012 NY Slip Op 04732 [96 AD3d 823] |
| June 13, 2012 |
| Appellate Division, Second Department |
| Sound Shore Medical Center of Westchester,Appellant, v Romelle Maloney, Respondent. |
—[*1] Brody, Benard & Branch, LLP, New York, N.Y. (Tanya M. Branch and Mary Ellen O'Brienof counsel), for respondent.
In an action to recover on three promissory notes, commenced by motion for summaryjudgment in lieu of complaint pursuant to CPLR 3213, the plaintiff appeals from an order of theSupreme Court, Westchester County (Smith, J.), entered April 29, 2011, which denied its motionfor summary judgment.
Ordered that the order is affirmed, 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], citing 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]).
The plaintiff established its prima facie entitlement to judgment as a matter of law bysubmitting the subject promissory notes, which were signed by the defendant and whichcontained an unequivocal and unconditional obligation to repay, and by showing that thedefendant failed to pay in accordance with the notes' terms. However, in opposition to theplaintiffs' prima facie showing, the defendant raised triable issues of fact, inter alia, as to whetherany money tendered to her by the plaintiff was, in fact, a loan, whether her alleged promise torepay should properly be deemed to constitute a note, and how much was actually owed on thenote (see Agai v Diontech Consulting,Inc., 64 AD3d 622, 623 [2009]; Khoury v Khoury, 280 AD2d 453 [2001]).
In light of our determination, we need not address the defendant's remaining contention.Dillon, J.P., Eng, Austin and Sgroi, JJ., concur.