Tibball v. Catalanotto

269 A.D.2d 386, 702 N.Y.S.2d 869, 2000 N.Y. App. Div. LEXIS 1249

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2000
• Status: Published

Opinion

—In an action pursuant to CPLR 3213 for summary judgment in lieu of complaint to recover money owed on a promissory note, the plaintiff appeals from an order of the Supreme Court, Nassau County (Dunne, J.), entered March 25, 1999, which denied the motion.

Ordered that the order is affirmed, with costs.

The parties entered into an agreement in May 1998 in which the defendant agreed to purchase a snack food route from the plaintiff. Part of the purchase price was secured by a promissory note. In response to the plaintiff’s motion for summary judgment in lieu of complaint on the promissory note, the defendant alleged, inter alia, a failure of consideration with respect to the underlying purchase agreement. We agree with the Supreme Court that the promissory note and the purchase agreement are sufficiently intertwined to render summary judgment on the note premature (see, Ingalsbe v Mueller, 257 AD2d 894; A Assocs. v Naughter, 236 AD2d 655; Eurotech Dev. v Adirondack Pennysaver, 224 AD2d 738; Regal Limousine v Allison Limousine Servs., 136 AD2d 534). O’Brien, J. P., Sullivan, Goldstein, Luciano and Feuerstein, JJ., concur.