Marshall v. Colvin Motor Parts of Long Island, Inc.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: THOMPSON
• Citation: Marshall v. Colvin Motor Parts of Long Island, Inc., 528 N.Y.S.2d 1007, 140 A.D.2d 673 (N.Y. App. Div. 1988)
• Decision Date: 31 May 1988
• Parties: Helen MARSHALL, Respondent, v. COLVIN MOTOR PARTS OF LONG ISLAND, INC., Appellant.

Page 1007

528 N.Y.S.2d 1007

140 A.D.2d 673

Helen MARSHALL, Respondent, v. COLVIN MOTOR PARTS OF LONG ISLAND, INC., Appellant.

Supreme Court of New York, Appellate Division Second Department.

May 31, 1988

Nathanson, Devack & Memmoli, Franklin Square (Michell J. Devack and Harold Somer, on the brief), for appellant. Greenspan, Jaffe & Rosenblatt, White Plains (Paul D. Jaffe, of counsel), for respondent.

In an action to recover on a promissory note, the defendant appeals from a judgment of the Supreme Court, Nassau County (Roncallo, J.), entered October 20, 1986, which is in favor of the plaintiff and against it in the principal sum of $22,917.30 upon granting the plaintiff's motion for summary judgment in lieu of complaint. ORDERED that the judgment is affirmed, with costs. In support of her motion for summary judgment in lieu of complaint (see, CPLR 3213), the plaintiff established her cause of action as a matter of law ( see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067-1068, 416 N.Y.S.2d 790, 390 N.E.2d 298). "It is incontestable that plaintiff * * * prove[d] a prima facie case by proof of the note and a failure to make payments called for by its terms" ( Seaman-Andwall Corp. v. Wright Mach. Corp., 31 A.D.2d 136, 137, 295 N.Y.S.2d 752, appeal dismissed 28 N.Y.2d 716, 320 N.Y.S.2d 756, 269 N.E.2d 414, affd. 29 N.Y.2d 617, 324 N.Y.S.2d 410, 273 N.E.2d 138; see, Ihmels v. Kahn, 126 A.D.2d 701, 511 N.Y.S.2d 306; Gateway State Bank v. Shangri-La Private Club for Women, 113 A.D.2d 791, 792, 493 N.Y.S.2d 226, affd. 67 N.Y.2d 627, 499 N.Y.S.2d 679, 490 N.E.2d 546; Badische Bank v. Ronel Systems, 36 A.D.2d 763, 321 N.Y.S.2d 320). Execution of the promissory note dated April 15, 1977, and the default in payment was established by the plaintiff's motion papers and was not denied by the defendant. Consequently, it was incumbent upon the defendant to come forward with proof of evidentiary facts showing the existence of a triable issue with respect to a bona fide defense ( see, Zuckerman v. City of New York, supra, 49 N.Y.2d at 560, 427 N.Y.S.2d 595, 407 N.E.2d 718; Ihmels v. Kahn, supra; Gateway State Bank v. Shangri-La Private Club for Women, supra, 113 A.D.2d at 792, 493 N.Y.S.2d 226). This the defendant has failed to do. There is nothing of an evidentiary nature in the record to support the defendant's bare allegation of the invalidity of the note and ...