| Giller v Weiss |
| 2016 NY Slip Op 05117 [140 AD3d 1117] |
| June 29, 2016 |
| Appellate Division, Second Department |
[*1]
| Mark Giller, Also Known as Moshe Giller,Appellant, v Brian Weiss, Respondent. |
Smith & Shapiro, New York, NY (Harry Shapiro, Harold Z. Frechter, and EliadShapiro of counsel), for appellant.
Kenneth Moran, Suffern, NY, for respondent.
In an action to recover on a promissory note, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Winslow, J.), entered July 1, 2015, which denied hismotion for summary judgment on the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff commenced this action to recover on a promissory note executed by theparties in 2009. Shortly after joinder of issue, and without the benefit of discovery, hemoved for summary judgment on the complaint. The defendant opposed the motion,submitting an affidavit and documentary evidence in support of his assertion, inter alia,that he was coerced into signing the note. The Supreme Court denied the motion withoutconsidering the defendant's opposition, concluding that the plaintiff failed to demonstratehis prima facie entitlement to summary judgment. We now affirm, albeit pursuant to adifferent rationale.
"To establish prima facie entitlement to judgment as a matter of law on the issue ofliability with respect to a promissory note, a plaintiff must show the existence of apromissory note executed by the defendant and the failure of the defendant to pay inaccordance with the note's terms" (Griffon V, LLC v 11 E. 36th, LLC, 90 AD3d 705, 706[2011]; see Pennsylvania HigherEduc. Assistance Agency v Musheyev, 68 AD3d 736 [2009]; Levien v Allen, 52 AD3d578 [2008]). Contrary to the Supreme Court's determination, the plaintiff establishedhis prima facie entitlement to summary judgment by submitting a copy of the subject notesigned by the defendant, and evidence of the defendant's default in payment. However, inopposition to the motion, the defendant submitted sufficient evidence to raise a triableissue of fact regarding whether he was coerced into signing the note (see generally Katz v Miller,120 AD3d 768, 769 [2014]; Call v Ellenville Natl. Bank, 5 AD3d 521, 525 [2004];Bekas v 13 Sagamore Woods Corp., 203 AD2d 406 [1994]). Additionally, thedefendant raised issues regarding the nature of the business relationship of the partiesand the proper disposition of certain partial payments made by him to the plaintiff undera previous, allegedly usurious note, which may warrant further discovery. Mastro, J.P.,Austin, Sgroi and Maltese, JJ., concur.