Levien v. Allen

52 A.D.3d 578, 860 N.Y.S.2d 174

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 10, 2008
• Status: Published

Opinion

In an action to recover on three promissory notes, the defendants appeal from a judgment of the Supreme Court, Nassau County (Bucaria, J.), entered November 9, 2006, which, upon a decision of the same court dated October 2, 2006, made after a nonjury trial, is in favor of the plaintiff and against them in the principal sum of $426,865.14.

Ordered that the judgment is affirmed, with costs.

The Supreme Court properly awarded judgment to the plaintiff. The plaintiff established a prima facie case by submitting proof of the existence of the three promissory notes and the defendants’ default on each note (see Lorenz Diversified Corp. v Falk, 44 AD3d 910 [2007]; Marinis v Scherr, 306 AD2d 448 [2003]). The defendants failed to controvert the evidence presented by the plaintiff (see Lorenz Diversified Corp. v Falk, 44 AD3d 910 [2007]). Furthermore, the defendants failed to establish the affirmative defenses of lack of consideration (see Anand v Wilson, 32 AD3d 808, 809 [2006]; see generally Mencher v Weiss, 306 NY 1, 8 [1953]) or usury (cf. Hicki v Choice Capital Corp., 264 AD2d 710, 711 [1999]). The defendants also failed to establish that the plaintiff converted the loans to a capital contribution (cf. Security Mut. Life Ins. Co. v Member Servs., Inc., 46 AD3d 1077, 1078 [2007]; J.L.B. Equities v Mind Over Money, 261 AD2d 510 [1999]).

The defendants’ remaining contentions are either improperly raised for the first time on appeal or without merit. Spolzino, J.P, Covello, Dickerson and Eng, JJ., concur.