Dowsey v. Megerian

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before WEINSTEIN
• Citation: Dowsey v. Megerian, 503 N.Y.S.2d 591, 121 A.D.2d 497 (N.Y. App. Div. 1986)
• Decision Date: 16 June 1986
• Parties: Mary M. DOWSEY, Respondent, v. John MEGERIAN, etc., Appellant.

Page 591

503 N.Y.S.2d 591

121 A.D.2d 497

Mary M. DOWSEY, Respondent, v. John MEGERIAN, etc., Appellant.

Supreme Court, Appellate Division Second Department.

June 16, 1986.

Finkelstein & Robinson, New York City (William Finkelstein and Miriam M. Robinson, of counsel), for appellant.

C. Malcolm Dowsey, Roslyn (William D. Fireman, of counsel), for respondent.

Before WEINSTEIN, J.P., and NIEHOFF, KUNZEMAN and SPATT, JJ.

MEMORANDUM BY THE COURT.

In an action to recover on a promissory note, the defendant appeals from an order of the Supreme Court, Nassau County (McCaffrey, J.), dated February 25, 1985, which granted the plaintiff's motion for summary judgment.

Order reversed, with costs, and motion denied.

Scrutinizing the competing claims in a light most favorable to the party opposing the motion (see, Nojaim Bros. v. CNA Ins. Cos., 113 A.D.2d 109, 114, 496 N.Y.S.2d 113; Goldstein v. County of Monroe, 77 A.D.2d 232, 236, 432 N.Y.S.2d 966), an issue of fact exists as to whether or not the defendant made timely payment. The fact that the defendant was unable to offer conclusive proof of payment is attributable to a denial of his requests for discovery rather than to the credibility of his defense. Special Term's negative assessment of the defendant's credibility, however improbable it might have found his representation to be, on the basis of the absence of written...