Badenhop v. Badenhop

271 A.D.2d 386, 706 N.Y.S.2d 900, 2000 N.Y. App. Div. LEXIS 3805

Opinion

—In an action to recover upon a promissory note brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, where the motion papers were converted to pleadings, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Phelan, J.), dated January 29, 1999, as denied that branch of his motion which was for summary judgment on the complaint.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the plaintiffs motion which was for summary judgment on the complaint is granted, and the counterclaim is severed.

The plaintiff established his prima facie entitlement to judgment as a matter of law by producing the promissory note executed by the parties and demonstrating that the defendants had defaulted in payment thereon (see, J.L.B. Equities v Mind Over Money, 261 AD2d 510; RVC Assocs. v Farkas, 261 AD2d 383; O’Brien v O’Brien, 258 AD2d 446). In opposition, the defendant failed to submit proof in admissible form sufficient to raise a triable issue of fact concerning his allegations that he was fraudulently induced to execute the promissory note (see, J.L.B. Equities v Mind Over Money, supra). Accordingly, the plaintiff was entitled to summary judgment on the complaint. O’Brien, J. P., Ritter, Sullivan and Smith, JJ., concur.