Cicconi v. McGinn, Smith & Co.

35 A.D.3d 292, 825 N.Y.S.2d 360

Opinion

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered February 1, 2005, which granted plaintiffs motion for partial summary judgment on his second cause of action to enforce a promissory note, unanimously affirmed, with costs.

Plaintiff made a prima facie case for a right to payment by proof of the note and the debtor’s failure to make the payments called for therein (Boland v Indah Kiat Fin. [IV] Mauritius, 291 AD2d 342 [2002]). Defendant McGinn, Smith failed to rebut sufficiently plaintiff’s statement of material facts. McGinn, Smith’s counterclaims were not sufficiently interwoven with the note to be considered a setoff against plaintiffs claim (see Reed v Shoratlantic Dev. Co., 121 AD2d 525 [1986]).

We have considered McGinn, Smith’s remaining arguments and find them without merit. Concur—Buckley, P.J., Mazzarelli, Andrias, Sullivan and Sweeny, JJ.