Preciosa USA, Inc. v. Weiss & Biheller, MDSE, Corp.

127 A.D.3d 1156, 5 N.Y.S.3d 909

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 29, 2015
• Docket: 2014-05540
• Status: Published

Opinion

In an action to recover upon an instrument for the payment of money only, brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendants appeal from an order of the Supreme Court, Westchester County (Jamieson, J.), dated April 9, 2014, which granted the motion.

Ordered that the order is affirmed, with costs.

The plaintiff established its prima facie entitlement to judgment as a matter of law by submitting, among other things, the subject promissory note, which contained an unequivocal and unconditional obligation to pay, and proof of the defendants’ failure to make payments on the note according to its terms (see Nunez v Channel Grocery & Deli Corp., 124 AD3d 734 [2015]; Griffon V, LLC v 11 E. 36th, LLC, 90 AD3d 705, 706 [2011]).

In opposition to the plaintiffs prima facie showing, the defendants failed to raise a triable issue of fact (see East N.Y. Sav. Bank v Baccaray, 214 AD2d 601, 603 [1995]). The defendants’ contention, raised for the first time on appeal, that the Supreme Court improperly considered an unsworn affidavit from the plaintiffs principal, is not properly before this Court.

Furthermore, contrary to the defendants’ contention, the subject note was not “inextricably intertwined” with certain other allegedly related agreements the parties entered into, such that the plaintiffs alleged breach of those agreements may create a defense to payment on the note (New York Community Bank v Fessler, 88 AD3d 667, 668 [2011]; cf. Fitzpatrick v Animal Care Hosp., PLLC, 104 AD3d 1078, 1080 [2013]; Lorber v Morovati, 83 AD3d 799, 800 [2011]).

Accordingly, the Supreme Court correctly granted the plaintiffs motion for summary judgment in lieu of complaint pursuant to CPLR 3213.

Rivera, J.P., Roman, Sgroi and Duffy, JJ., concur.