Zitel Corp. v. Fonar Corp.

210 A.D.2d 221, 619 N.Y.S.2d 964, 1994 N.Y. App. Div. LEXIS 12359

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 5, 1994
• Status: Published

Opinion

—In an action to enforce a promissory note, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Lama, J.), dated June 4, 1993, which denied its motion for summary judgment in lieu of a complaint.

Ordered that the order is reversed, on the law, with costs, the plaintiff’s motion for summary judgment in lieu of a complaint is granted, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of an appropriate judgment.

The plaintiff established prima facie its entitlement to judgment as a matter of law by producing the promissory note executed by the defendant and by establishing that the defendant defaulted on the note (see, Mlcoch v Smith, 173 AD2d 443, 444). It was then incumbent upon the defendant to demonstrate, by admissible evidence, the existence of a genuine triable issue of fact. The defendant’s production of a partially executed assignment agreement was insufficient to defeat the plaintiff’s motion for summary judgment in lieu of a complaint. Accordingly, the Supreme Court should have granted the plaintiff’s motion (see, CPLR 3213). Bracken, J. P., Balletta, Ritter, Pizzuto and Florio, JJ., concur.