Gemilas Chesed Kehilath Jakov Papa, Inc. v. Oberlander

212 A.D.2d 574, 622 N.Y.S.2d 554, 1995 N.Y. App. Div. LEXIS 1529

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 14, 1995
• Status: Published

Opinion

—In an action brought by motion pursuant to CPLR 3213 for summary judgment in lieu of a complaint, the defendant appeals from a judgment of the Supreme Court, Kings County (I. Aronin, J.), entered September 7, 1990, which is in favor of the plaintiff and against him in the principal sum of $6,259. By decision and order of this Court dated March 1, 1993 (Gemilas Chesed Kehilath Jakov Papa v Oberlander, 191 AD2d 411), the matter was remitted to the Supreme Court, Kings County, to hear and report on the issue of whether the defendant had been properly served with process, and the appeal was held in abeyance in the interim. The Supreme Court has conducted a hearing and filed its report with this Court.

Ordered that the judgment is affirmed, with costs.

By decision and order of this Court dated March 1, 1993 (Gemilas Chesed Kehilath Jakov Papa v Oberlander, 191 AD2d 411, supra), the present appeal was held in abeyance while the issue of whether the defendant had been properly served with process was remitted to the Supreme Court, Kings County, for a hearing. The hearing that was held on March 23, 1994, established that the defendant was personally served with process by Henry Rubenstein on May 24, 1990, and the Supreme Court so found in its report to this Court dated March 25, 1994.

The plaintiff submitted with its motion for summary judgment a promissory note signed by the defendant, two can-celled checks endorsed by him, and proof that the defendant had failed to make any payments on the note, a failure that the defendant does not deny. The plaintiff has, therefore, established a prima facie case for recovery on the note, and, in view of the defendant’s failure to submit any proof of evidentiary facts showing the existence of a triable issue with respect to a bona fide defense, summary judgment was properly granted to the plaintiff (see, Gateway State Bank v Shangri-La Private Club for Women, 113 AD2d 791, affd 67 NY2d 627). Bracken, J. P., Miller, Lawrence, Copertino and Santucci, JJ., concur.