Mackey v. Dominick & Dominick Inc.

47 A.D.2d 722, 365 N.Y.S.2d 18, 1975 N.Y. App. Div. LEXIS 8968

Opinion

Order, Supreme Court, New York County, entered- on July 26, 1974, denying the plaintiff's motion for summary judgment m lieu of complaint, unanimously reversed, on the law, and the motion granted. Appellant shall recover of respondent $60 costs and disbursements of this" appeal. The plaintiff seeks five interest payments on a senior capital note. A clause of the note subordinating its interest and principal payments “to the prior payment or provision for payment in full of all claims of all • other present and future creditors ” is alleged in defense, but the defendant has made no factual averments to establish the applicability of this clause. ■ The single conclusory statement that it is not in a financial position to make payment is not in itself sufficient to create an issue of fact; the facts must be'stated in evidentiary form (Ehrlich v. American Moninger Greenhouse Mfg. Gorp., 26 N Y 2d 255). Settle order on notice. Concur — 'Kupferman, J. P., Lane, Nunez and Lynch, JJ.