Jason J. Weindorf, Cpa, P.C. v. Wightman

• Decision Date: 25 November 2015
• Citation: 2015 N.Y. Slip Op. 08708,19 N.Y.S.3d 431 (Mem),133 A.D.3d 822
• Parties: Jason J. WEINDORF, CPA, P.C., appellant, v. Fred WIGHTMAN, respondent.
• Court: New York Supreme Court — Appellate Division

133 A.D.3d 822

19 N.Y.S.3d 431 (Mem)

2015 N.Y. Slip Op. 08708

Jason J. WEINDORF, CPA, P.C., appellant,

v.Fred WIGHTMAN, respondent.

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

Nov. 25, 2015.

Jules A. Epstein, P.C., Garden City, N.Y., for appellant.

Paula A. Miller, P.C., Smithtown, N.Y., for respondent.

Opinion

In an action to recover on a promissory note, commenced by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Pines, J.), dated October 30, 2014, as denied its motion.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action to recover on a promissory note by motion for summary judgment in lieu of complaint pursuant to CPLR 3213. The plaintiff established its prima facie entitlement to judgment as a matter of law by submitting proof that the defendant executed a promissory note, which contained an unconditional promise to pay a sum certain by May 31, 2014, and failed to pay in accordance with the terms of the note (see Luiso v. Poehlsen,125 A.D.3d 726, 999 N.Y.S.2d 898; Sun Convenient, Inc. v. Sarasamir Corp.,123 A.D.3d 906, 907, 999 N.Y.S.2d 432; Von Fricken v. Schaefer,118 A.D.3d 869, 870, 988 N.Y.S.2d 254). “[T]he general rule is that the breach of a related contract cannot defeat a motion for summary judgment on an instrument for money only unless it can be shown that the contract and the instrument are intertwined and that the defenses alleged to exist create material issues of triable fact” (Castle Restoration & Construction, Inc. v. Castle Restoration, LLC,122 A.D.3d 789, 790, 997 N.Y.S.2d 147[internal quotation marks omitted]; see Chervinsky v. Rezhets,132 A.D.3d 713, 18 N.Y.S.3d 631). Here, in opposition to the motion, the defendant demonstrated the existence of a triable issue of fact as to whether the plaintiff breached an asset purchase agreement that was intertwined with the promissory note (see Oseff v. Scotti,130 A.D.3d 797, 800–801, 15 N.Y.S.3d 350; Lorber v. Morovati,83 A.D.3d 799, 800, 922 N.Y.S.2d 109). Accordingly, the Supreme Court properly denied the motion.

MASTRO, J.P., DICKERSON, AUSTINand MALTESE, JJ., concur.