Dowsey v. Megerian

Appellate Division of the Supreme Court of New York

Dowsey v. Megerian

121 A.D.2d 497, 503 N.Y.S.2d 591, 1986 N.Y. App. Div. LEXIS 58476

Appellate Division of the Supreme Court of the State of New York·Decided June 16, 1986·Published·Cited by 6 cases

Opinion

In an action to recover on a promissory note, the [498] defendant appeals from an order of the Supreme Court, Nassau County (McCaffrey, J.), dated February 25, 1985, which granted the plaintiff’s motion for summary judgment.

Order reversed, with costs, and motion denied.

Scrutinizing the competing claims in a light most favorable to the party opposing the motion (see, Nojam Bros, v CNA Ins. Cos., 113 AD2d 109, 114; Goldstein v County of Monroe, 77 AD2d 232, 236), an issue of fact exists as to whether or not the defendant made timely payment. The fact that the defendant was unable to offer conclusive proof of payment is attributable to a denial of his requests for discovery rather than to the credibility of his defense. Special Term’s negative assessment of the defendant’s credibility, however improbable it might have found his representation to be, on the basis of the absence of written indicia of payment constitutes an inappropriate use of summary judgment (see, Plastoid Cable Corp. v TFI Cos., 55 AD2d 930). In view of the prevailing circumstances whereby, after some 12 years of consistently making payments to each of six payees, the defendant allegedly defaulted on a payment to the plaintiff with whom he had recently been involved in bitterly contested litigation, we decline to invoke the drastic remedy of summary judgment. Weinstein, J. P., Niehoff, Kunzeman and Spatt, JJ., concur.

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In an action to recover on a promissory note, the [498] defendant appeals from an order of the Supreme Court, Nassau County (McCaffrey, J.), dated February 25, 1985, which granted the plaintiff’s motion for summary judgment.

Order reversed, with costs, and motion denied.

Scrutinizing the competing claims in a light most favorable to the party opposing the motion (see, Nojam Bros, v CNA Ins. Cos., 113 AD2d 109, 114; Goldstein v County of Monroe, 77 AD2d 232, 236), an issue of fact exists as to whether or not the defendant made timely payment. The fact that the defendant was unable to offer conclusive proof of payment is attributable to a denial of his requests for discovery rather than to the credibility of his defense. Special Term’s negative assessment of the defendant’s credibility, however improbable it might have found his representation to be, on the basis of the absence of written indicia of payment constitutes an inappropriate use of summary judgment (see, Plastoid Cable Corp. v TFI Cos., 55 AD2d 930). In view of the prevailing circumstances whereby, after some 12 years of consistently making payments to each of six payees, the defendant allegedly defaulted on a payment to the plaintiff with whom he had recently been involved in bitterly contested litigation, we decline to invoke the drastic remedy of summary judgment. Weinstein, J. P., Niehoff, Kunzeman and Spatt, JJ., concur.

Dowsey v. Megerian, 121 A.D.2d 497, 503 N.Y.S.2d 591, 1986 N.Y. App. Div. LEXIS 58476 (N.Y. Ct. App. 1986).

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121 A.D.2d 497 (Dowsey v. Megerian) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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