Gullery v. Imburgio

• Decision Date: 15 June 2010
• Citation: 905 N.Y.S.2d 221,74 A.D.3d 1022
• Parties: Robert GULLERY, respondent, v. Steven J. IMBURGIO, appellant.
• Court: New York Supreme Court — Appellate Division

905 N.Y.S.2d 221

74 A.D.3d 1022

Robert GULLERY, respondent,

v.Steven J. IMBURGIO, appellant.

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

June 15, 2010.

Robert Goldman, New York, N.Y., for appellant.

John Z. Marangos, Staten Island, N.Y., for respondent.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and SHERI S. ROMAN, JJ.

In an action to recover on a promissory note, brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendant appeals from an order of the Supreme Court, Richmond County (Maltese, J.), dated July 23, 2009, which granted the motion.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly found that the plaintiff made a prima facie showing of entitlement to judgment as a matter of law by establishing the existence of a promissory note executed by the defendant, that the defendant was individually liable onthe note, and that the defendant defaulted in making payments pursuant to the note ( see Pennsylvania Higher Educ. Assistance Agency v. Musheyev, 68 A.D.3d 736, 888 N.Y.S.2d 911; Verela v. Citrus Lake Dev., Inc., 53 A.D.3d 574, 575, 862 N.Y.S.2d 96; Famolaro v. Crest Offset, Inc., 24 A.D.3d 604, 604-605, 807 N.Y.S.2d 387; Hestnar v. Schetter, 284 A.D.2d 499, 500, 728 N.Y.S.2d 479). The burden then shifted to the defendant to establish by admissible evidence the existence of a triable issue of fact with respect to a bona fide defense ( see Quest Commercial, LLC v. Rovner, 35 A.D.3d 576, 825 N.Y.S.2d 766; Bank of N.Y. v. Vega Tech. USA, LLC, 18 A.D.3d 678, 679, 794 N.Y.S.2d 922).

The defendant's claims that there was a lack of full consideration for the loan and that he made partial payment toward the loan were merely unsupported conclusory allegations which were insufficient to defeat the plaintiff's motion ( see Hestnar v. Schetter, 284 A.D.2d at 500-501, 728 N.Y.S.2d 479;MDJR Enters. v. LaTorre, 268 A.D.2d 509, 510, 703 N.Y.S.2d 54). The defendant's additional claim that he was not individually liable on the note that he signed as "Steven Imburgio, [doing business as] Wheel Concept 3" was unsupported by any evidence that Wheel Concept 3 is organized as a limited liability corporation or that the defendant signed the note in a representative capacity ( see Republic Natl. Bank of N.Y. v. GSO Inc., 177 A.D.2d 417, 418, 576 N.Y.S.2d 533; cf. Gottehrer v. Viet-Hoa Co., 170 A.D.2d 648, 567 N.Y.S.2d 71).

Contrary to the defendant's contention, the plaintiff was entitled to bring the motion without a prior demand as the note did not contain any time for payment ( see UCC 3-108; First Natl. Bank of Waterloo v. Story, 200 N.Y. 346, 93 N.E. 940; Gross v. Fruchter, 230 A.D.2d 710, 711, 646 N.Y.S.2d...