Luiso v. Poehlsen

• Citation: 999 N.Y.S.2d 898,125 A.D.3d 726,2015 N.Y. Slip Op. 01245
• Parties: Michael LUISO, et al., appellants, v. Roger POEHLSEN, respondent.
• Decision Date: 11 February 2015
• Court: New York Supreme Court Appellate Division

? 125 A.D.3d 726

999 N.Y.S.2d 898

2015 N.Y. Slip Op. 01245

Michael LUISO, et al., appellants,

v.Roger POEHLSEN, respondent.

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

Feb. 11, 2015

Brian R. Hoch, White Plains, N.Y., for appellants.

Joseph Cinquemani, White Plains, N.Y., for respondent.

In an action to recover upon an instrument for the payment of money only, brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Smith, J.), dated May 28, 2014, which denied the motion.

ORDERED that the order is affirmed, with costs.

The defendant executed a promissory note on March 10, 2012, promising to repay the plaintiffs $75,000 plus interest by March 9, 2013. On March 4, 2014, the plaintiffs filed a summons and a notice of motion for summary judgment in lieu of complaint pursuant to CPLR 3213 with supporting papers. The defendant opposed the motion, arguing that his obligation under the note had been satisfied. The Supreme Court denied the motion.

The plaintiffs established their prima facie entitlement to judgment as a matter of law pursuant to CPLR 3213 by submitting proof that the defendant executed the promissory note, which contained an unconditional promise to pay a sum certain by March 9, 2013, and failed to pay in accordance with the terms of the note ( see Weissman v. Sinorm Deli, 88 N.Y.2d 437, 444, 646 N.Y.S.2d 308, 669 N.E.2d 242; Von Fricken v. Schaefer, 118 A.D.3d 869, 870, 988 N.Y.S.2d 254; Jin Sheng He v. Sing Huei Chang, 83 A.D.3d 788, 789, 921 N.Y.S.2d 128; Lugli v. Johnston, 78 A.D.3d 1133, 1134, 912 N.Y.S.2d 108). However, in opposition, the defendant demonstrated the existence of a triable issue of fact as to whether his obligation under the note had been satisfied by payment of the amount due in full by November 30, 2012 ( see Agai v. Diontech Consulting, Inc., 64 A.D.3d 622, 623, 882 N.Y.S.2d 503; Khoury v. Khoury,280 A.D.2d 453, 454, 719 N.Y.S.2d 716).

Accordingly, the Supreme Court properly denied the plaintiffs' motion for summary judgment in lieu of complaint.

MASTRO, J.P., AUSTIN, MALTESE and BARROS, JJ., concur.