Crest Shipping Agency (NY) Inc. v. Commodore Consulting Inc.

294 A.D.2d 192, 741 N.Y.S.2d 699, 2002 N.Y. App. Div. LEXIS 5086

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 16, 2002
• Status: Published

Opinion

—Order, Supreme Court, New York County (Charles Ramos, J.), entered April 6, 2001, which, inter alia, granted plaintiffs motion for summary judgment in lieu of complaint on a promissory note issued by defendant Commodore Consulting Inc., and denied defendants’ cross motion to dismiss the action pursuant to CPLR 3211 (a) (4), unanimously affirmed, with costs.

Since the parties and issues raised in this action are not substantially identical to those in the action previously commenced by defendant Carmine Ragucci in Richmond County, the IAS court properly denied defendants’ cross motion to dismiss on the ground that another action between the same parties was pending (cf., Matter of Cliff v Mayo, 271 AD2d 763).

Summary judgment in lieu of complaint was properly granted upon the promissory note since plaintiff made out a prima facie case for the relief sought by adducing proof of the note, an instrument for the payment of a certain sum of money only, and evidence that the note had not been paid in accordance with its terms, and defendant failed to demonstrate the existence of defenses to the note (see, Boland v Indah Kiat Fin. [IV] Mauritius, 291 AD2d 342). Concur—Williams, P.J., Tom, Mazzarelli, Ellerin and Marlow, JJ.