Hestnar v. Schetter

• Citation: 728 N.Y.S.2d 479,284 A.D.2d 499
• Parties: DORIS O. HESTNAR, Respondent-Appellant,<BR>v.<BR>NOEL R. SCHETTER, Appellant-Respondent.
• Decision Date: 25 June 2001
• Court: New York Supreme Court — Appellate Division

284 A.D.2d 499

728 N.Y.S.2d 479

DORIS O. HESTNAR, Respondent-Appellant,

v.NOEL R. SCHETTER, Appellant-Respondent.

Decided June 25, 2001.

Ritter, J. P., Friedmann, H. Miller and Townes, JJ., concur.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is modified, on the law, by adding provisions thereto granting the plaintiff interest calculated from the date payment was demanded until the date of the judgment, and an award of an attorney's fee; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Dutchess County, to compute the interest due and for a hearing to determine the amount of the attorney's fee to be awarded to the plaintiff; and it is further,

Ordered that the plaintiff is awarded two bills of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal and the cross appeal from the judgment (see, CPLR 5501 [a] [1]).

The plaintiff brought this action to recover payment on three promissory notes that the defendant guaranteed. The plaintiff made out a prima case by establishing the existence of the notes and the defendant's failure to make payments as called for by their terms (see, Interman Indus. Prods. v R. S. M. Electron Power, 37 NY2d 151; Gross v Fruchter, 230 AD2d 710; Grammas Assocs., Architectural & Eng'g Servs. v Ehrlich, 229 AD2d 517; Bennell Hanover Assocs. v Neilson, 215 AD2d 710, 711; Vernon v Winikoff, 182 AD2d 753). The burden then shifted to the defendant to establish by admissible evidence the existence of a triable issue of fact (see, Grammas Assocs., Architectural & Eng'g Servs. v Ehrlich, supra; Bennell Hanover Assocs. v Neilson, supra). The defendant's assertions that no consideration was given for two of the notes and that full payment had been made under all of the notes were merely unsupported conclusory allegations which were insufficient to defeat the plaintiff's motion (see, Grammas Assocs., Architectural & Eng'g Servs. v Ehrlich, supra).

The Supreme Court erred, however, in failing to award the plaintiff interest on the three notes from the date she demanded payment until the date of the judgment. Where a note provides for a specified interest rate, that rate shall be applied (see, Uniform Commercial Code § 3-122 [4]). If a note does not have an interest provision, but is payable on demand, interest accrues from...