Hall v. Burke Steel Service Center, Inc.

52 A.D.2d 735, 382 N.Y.S.2d 176, 1976 N.Y. App. Div. LEXIS 12431

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 9, 1976
• Status: Published

Opinion

Order unanimously affirmed, with costs. Memorandum: Plaintiffs properly commenced this action based on an instrument for the payment of money only as a motion for summary judgment in lieu of a complaint (CPLR 3213). Special Term denied the motion, finding that the affidavits established substantial triable issues of fact. We agree. Execution of the note and default in payment having been established by plaintiffs, and not being denied by defendants, it was incumbent on defendants to come forward with proof of evidentiary facts showing the existence of a genuine and substantial issue (Seaman-Andwall Corp. v Wright Mach. Corp., 31 AD2d 136, 137-138, affd 29 NY2d 617; Mills v Ryan, 41 AD2d 689, 690). We find that defendants have presented sufficient evidentiary proof with respect to the alleged acts and misrepresentations of plaintiffs concerning the wrongful assignment of the note, an inventory discrepancy, improper use of the name and logo of Burke Steel Service Center, among others, which, if true, militate against the granting of the relief requested (Crompton-Richmond Co. v Peterson, 40 AD2d 646; Century Constr. Corp. v Friedman, 40 AD2d 1033; Empire Brushes v Gantz, 40 AD2d 974). Only the trial process can assay the truth of these defenses. On this presentation there are too many crosscurrents and too many mixed questions of law and fact even to warrant the granting of partial summary judgment. (Appeal from order of Monroe Supreme Court in action on promissory note.) Present—Marsh, P. J., Cardamone, Simons, Mahoney and Witmer, JJ.