Banesto Banking Corp. v. Teitler

172 A.D.2d 469, 568 N.Y.S.2d 811, 1991 N.Y. App. Div. LEXIS 5166

Opinion

Judgment, Supreme Court, New York County (Beverly S. Cohen, J.), entered April 2, 1990, which found in favor of plaintiff and against defendant for the principal sum due upon a promissory note of $160,000 with interest thereon for a total sum of $183,071.32, unanimously affirmed, with costs.

Plaintiff commenced this action by service of a summons and motion for summary judgment in lieu of complaint to collect the unpaid principal balance under a single payment consumer note executed by the defendant. Plaintiff established a prima facie right to recovery based upon proof that defendant executed the note and subsequently failed to make payment thereon in accordance with its terms (Gateway State Bank v Shangri-La Private Club for Women, 113 AD2d 791, affd 67 NY2d 627). It was incumbent upon defendant, therefore, to come forward with proof showing the existence of a triable issue of fact with respect to a bona fide defense (Gateway State Bank v Shangri-La Private Club for Women, supra, at 792). The affirmation submitted by defendant in opposition to summary judgment in this case contains nothing more than unsubstantiated conclusory allegations of fraudulent misrepresentations and purported oral agreements which are insufficient to meet this burden. (See, Banner Indus. v Key B.H. Assocs., 170 AD2d 246.) Concur—Sullivan, J. P., Rosenberger, Kupferman, Ross and Smith, JJ.