Loewenberg v. Basnight

172 A.D.3d 1356

99 N.Y.S.3d 661 (Mem)

David LOEWENBERG, Appellant,

v.William Kirkland BASNIGHT, Respondent.

2018–03846

Index No. 615635/17

Supreme Court, Appellate Division, Second Department, New York.

Argued—March 7, 2019

May 29, 2019

Pryor Cashman LLP, New York, N.Y. (Lauren B. Cooperman and Lester Schwab Katz & Dwyer, LLP [Paul M. Tarr and Daniel S. Kotler ], of counsel), for appellant.

Schlam Stone & Dolan LLP, New York, N.Y. (Jeffrey M. Eilender and Niall D. O'Murchadha of counsel), for respondent.

REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action to recover on a promissory note, commenced by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Denise F. Molia, J.), entered March 5, 2018. The order denied the plaintiff's motion for summary judgment in lieu of complaint.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment in lieu of complaint pursuant to CPLR 3213 is granted.

The parties are former business partners who jointly owned two restaurants and also jointly owned a company that owned the real estate upon which the restaurants operated. In April 2015, the parties entered into a written purchase agreement whereby the plaintiff sold his interests in the three entities to the defendant at that time. In partial consideration for the sale, the defendant executed a promissory note in favor of the plaintiff in the amount of $585,000, to be paid in three self-amortizing annual installments. Following a default by the defendant under the note in July 2017, the plaintiff commenced this action against the defendant to recover on the promissory note by motion for summary judgment in lieu of complaint pursuant to CPLR 3213. The Supreme Court denied the motion, and the plaintiff appeals.

The plaintiff established his prima facie entitlement to judgment as a matter of law by submitting the promissory note, which contains an unconditional obligation to pay, and proof of the defendant's failure to make payments on the note according to its terms (see Banco Popular N. Am. v. Victory Taxi Mgt., 1 N.Y.3d 381, 383, 774 N.Y.S.2d 480, 806 N.E.2d 488 ; Ahmad v. Luce, 147 A.D.3d 888, 888, 46 N.Y.S.3d 805 ; Jason J. Weindorf, CPA, P.C. v. Wightman, 133 A.D.3d 822, 822, 19 N.Y.S.3d 431 ; Luiso v. Poehlsen, 125 A.D.3d 726, 999 N.Y.S.2d 898 ; Sun Convenient, Inc. v. Sarasamir Corp., 123 A.D.3d 906, 907, 999 N.Y.S.2d 432 ).

In opposition, the defendant failed to "satisfy his burden of establishing the existence of a triable issue of fact by submitting admissible evidence of a bona fide defense to nonpayment" ( Rachmany v. Regev, 115 A.D.3d 840, 841, 982 N.Y.S.2d 352 ; see Castle Restoration & Constr., Inc. v Castle Restoration,...