Crumbliss v. Swerdlow
| Decision Date | 13 February 1990 |
| Citation | 551 N.Y.S.2d 265,158 A.D.2d 502 |
| Parties | Jeanne CRUMBLISS, Respondent, v. Michael J. SWERDLOW, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Dow, Lohnes & Albertson, New York City (Neal S. Barlia and Leslie S. Hollo, of counsel), for appellant.
Taylor, Atkins & Ostrow, Garden City (Michael B. Atkins, of counsel), for respondent.
Before MOLLEN, P.J., and EIBER, SULLIVAN and ROSENBLATT, JJ.
MEMORANDUM BY THE COURT.
In an action to recover on a promissory note, the defendant appeals from a judgment of the Supreme Court, Nassau County (O'Shaughnessy, J.), entered February 27, 1989, which granted the plaintiff's motion pursuant to CPLR 3213 and awarded her the principal sum of $500,000.
ORDERED that the judgment is affirmed, with costs.
The defendant, an attorney, executed a letter agreement wherein he confirmed his purchase of certain jewelry from the plaintiff. In connection therewith, the defendant gave the plaintiff a promissory note for the sum of $500,000. Pursuant to the note and agreement, the defendant made four interest payments to the plaintiff; however, the check for the fourth payment was returned for "insufficient funds". The plaintiff then commenced this action to recover the moneys due under the promissory note.
We note at the outset that the note constitutes an instrument for the payment of a sum of money only (see, Haug v. Metal City Findings Corp., 47 A.D.2d 837, 365 N.Y.S.2d 882; Horne v. Law Research Serv., 35 A.D.2d 931, 316 N.Y.S.2d 367, affd. 28 N.Y.2d 969, 323 N.Y.S.2d 707, 272 N.E.2d 80; Seaman Andwall Corp. v. Wright Mach. Corp., 31 A.D.2d 136, 295 N.Y.S.2d 752, affd. 29 N.Y.2d 617, 324 N.Y.S.2d 410, 273 N.E.2d 138). Thus, the use of the procedure set forth in CPLR 3213 was appropriate.
We further find that the plaintiff is entitled to summary judgment pursuant to CPLR 3213, despite the defendant's unsubstantiated assertion that the note is unenforceable for lack of consideration since he never received the jewelry. As the Supreme Court noted, the language employed in the letter agreement, to wit, "I have purchased from you certain jewelry" as well as the term "for the value received" used in the promissory note indicate that there was consideration for the note and a purchase had already been consummated. The defendant failed to proffer any evidence to rebut this conclusion (see, Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255, 258, 309 N.Y.S.2d 341, 257 N.E.2d 890; Gateway State Bank v. Shangri-La Private Club for Women, 113 A.D.2d 791, 493 N.Y.S.2d...
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