Cadlerock Joint Venture, L.P. v. Homesell, Inc.

• Decision Date: 17 February 2016
• Citation: 24 N.Y.S.3d 913 (Mem),136 A.D.3d 853
• Parties: CADLEROCK JOINT VENTURE, L.P., appellant, v. HOMESELL, INC., et al., respondents.
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 853

24 N.Y.S.3d 913 (Mem)

CADLEROCK JOINT VENTURE, L.P., appellant,

v.HOMESELL, INC., et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 17, 2016.

Vlock & Associates, P.C., New York, N.Y. (Steven P. Giordano of counsel), for appellant.

Morse Geller, West Hempstead, N.Y., for respondents.

In an action to recover on a promissory note and personal guaranty, the plaintiff appeals from an order of the Supreme Court, Kings County (Solomon, J.), dated April 11, 2014, which denied its motion for summary judgment on the complaint.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the complaint is granted.

Contrary to the Supreme Court's determination, the plaintiff made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence of the existence of an underlying promissory note and personal guaranty, and the defendants' failure to make payment in accordance with the terms of those instruments (see Nunez v. Channel Grocery & Deli Corp., 124 A.D.3d 734, 735, 998 N.Y.S.2d 663 ; Rachmany v. Regev, 115 A.D.3d 840, 841, 982 N.Y.S.2d 352 ; TD Bank, N.A. v. Clinton Ct. Dev., LLC, 105 A.D.3d 1032, 1035, 965 N.Y.S.2d 129 ). Further, to the extent that the plaintiff's standing to commence this action can be deemed to have been put in issue by the defendants' answer, the plaintiff's submissions were sufficient to establish its standing as the holder of the note with an allonge endorsed in blank (see Loancare v. Firshing, 130 A.D.3d 787, 788, 14 N.Y.S.3d 410; Emigrant Bank v. Larizza, 129 A.D.3d 904, 905, 13 N.Y.S.3d 129; U.S. Bank N.A. v. Guy, 125 A.D.3d 845, 847, 5 N.Y.S.3d 116 ). In opposition, the defendants failed to raise a triable issue of fact with respect to either the plaintiff's standing or a bona fide defense to nonpayment (see JP Morgan Chase Bank, N.A. v. Business Payment Sys., LLC, 127 A.D.3d 822, 4 N.Y.S.3d 901 ; Nunez v. Channel Grocery & Deli Corp., 124 A.D.3d at 735, 998 N.Y.S.2d 663 ; Griffon V, LLC v. 11 E. 36th, LLC, 90 A.D.3d 705, 707, 934 N.Y.S.2d 472 ). Accordingly, the Supreme Court should have granted the plaintiff's motion for summary judgment on the complaint.

MASTRO, J.P., AUSTIN, SGROI and BARROS, JJ., concur.