Gross v. Fruchter
| Decision Date | 05 August 1996 |
| Citation | 646 N.Y.S.2d 53,230 A.D.2d 710 |
| Parties | Ronald GROSS, etc., Appellant, v. Joel FRUCHTER, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Scheichet & Davis, P.C., New York City (William J. Davis and Rhonda E. Ores, of counsel), for appellant.
Jacques Catafago, New York City (Lawrence R. Lonergan, of counsel), for respondent.
Before BRACKEN, J.P., and THOMPSON, KRAUSMAN and FLORIO, JJ.
MEMORANDUM BY THE COURT.
In an action to recover on a promissory note, the plaintiff appeals from an order of the Supreme Court, Kings County (Golden, J.), dated May 16, 1995, which denied his motion for summary judgment in lieu of complaint pursuant to CPLR 3213.
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Kings County for entry of an appropriate judgment.
Initially, the process server's affidavit established prima facie proof of service under CPLR 308(4), and the defendant's allegations failed to rebut the veracity or content of the affidavit (see, Genway Corp. v. Elgut, 177 A.D.2d 467, 575 N.Y.S.2d 899; Del Priore v. Furnival Mach. Co., 124 A.D.2d 695, 508 N.Y.S.2d 206).
The plaintiff established prima facie his entitlement to judgment as a matter of law by producing the promissory note executed by the defendant and demonstrating that he failed to pay it (see, Bennell Hanover Assocs. v. Neilson, 215 A.D.2d 710, 627 N.Y.S.2d 439; Silber v. Muschel, 190 A.D.2d 727, 593 N.Y.S.2d 306). It was, therefore, incumbent on the defendant to establish the existence of a triable issue of fact. The defendant's allegation that there was an oral agreement that he would not have to repay the note until his financial condition improved is barred by the parol evidence rule (see, Central Fed. Sav. v. Berk, 215 A.D.2d 520, 626 N.Y.S.2d 556; see also, Benderson Dev. Co. v. Hallaway Props., 67 N.Y.2d 963, 502 N.Y.S.2d 1001, 494 N.E.2d 106; Falco v. Thorne, 225 A.D.2d 582, 639 N.Y.S.2d 106).
Moreover, the Supreme Court erred in concluding that there was a triable issue of fact as to whether the demand for payment was made within a reasonable time pursuant to UCC § 3-503. Presentment for payment is not necessary to charge the maker of a demand note (see, Dunning v. Dunning, 300 N.Y. 341, 90 N.E.2d 884; Bank of New York v. Bersani, 90 A.D.2d 302, 305, 457 N.Y.S.2d 142, 80 N.Y. Jur 2d, Negotiable Instruments and other Commercial Paper, §§ 377, 382). Accordingly, the...
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