F. A. Crossman, Inc. v. Weeks Auto Supply Center, Inc.

98 A.D.2d 964, 470 N.Y.S.2d 59, 1983 N.Y. App. Div. LEXIS 21289

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 1983
• Status: Published

Opinion

— Order unanimously reversed, with costs, and motion granted. Memorandum: Corporate defendant executed a promissory note to plaintiff in the amount of $42,000 at 9.5% interest for purchase of start-up inventory. Individual defendants simultaneously executed a guarantee. The note provided that the unpaid balance would accelerate and become due upon, inter alia, respondent’s default in payment of any installment. It is conceded that from June 25,1977, the date of the note, until December 25,1982, only 35 of the 62 payments due were made. Plaintiff elected to accelerate the note and commenced this action by service of the summons with a notice of motion for summary judgment in lieu of a complaint. Since no triable issues of fact are presented, Special Term should have granted summary judgment to plaintiff. The motion was properly brought under CPLR 3213. The acceleration provision did not affect the status of the instrument as one for payment of money only (see Kornfeld v NRX Technologies, 93 AD2d 772; Hogan & Co. v Saturn Mgt., 78 AD2d 837). Furthermore, this is not a case where the obligation to pay is interwoven with the contract terms (compare Haug v Metal City Findings Corp., 47 AD2d 837). Defendants’ bare conclusory allegations of fraud and coercion are insufficient to defeat the motion (see Parry v Goodson, 89 AD2d 543; Smith v Ellenville Nat. Bank, 60 AD2d 931). (Appeal from order of Supreme Court, Onondaga County, Aloi, J. — summary judgment.) Present — Hancock, Jr., J. P., Doerr, Green, O’Donnell and Moule, JJ.