Lombard & Co. v. De La Roche

235 A.D.2d 333, 652 N.Y.S.2d 965, 1997 N.Y. App. Div. LEXIS 598

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 28, 1997
• Status: Published

Opinion

Order, Supreme Court, New York County (Carol Huff, J.), entered October 11, 1995, which denied plaintiff’s motion for summary judgment pursuant to CPLR 3213, and order, same court and Justice, entered August 2, 1996, which denied its motion for renewal, unanimously affirmed, without costs.

The motion court properly considered parol evidence in finding that defendant had raised a triable issue as to whether the instruments were part of a "sham” transaction in which they were never intended to operate as promissory notes at all (Bernstein v Kritzer, 253 NY 410, 416). Contrary to plaintiff’s contention, there is no evidence here of any scheme in contravention of public policy that should preclude application of the foregoing exception to the parol evidence rule (cf., Bersani v General Acc. Fire & Life Assur. Corp., 36 NY2d 457, 460-461; Greenleaf v. Lachman, 216 AD2d 65, 66, lv denied 88 NY2d 802). Renewal was properly denied for failure to proffer any excuse for not having submitted the new evidence on the original motion (see, e.g., Leonard Fuchs, Inc. v Laser Processing Corp., 222 AD2d 280). Concur—Murphy, P. J., Milonas, Rosenberger, Ellerin and Williams, JJ.