New York State Higher Educ. Services Corp. v. Barry

• Citation: 267 A.D.2d 567,699 N.Y.S.2d 204
• Parties: NEW YORK STATE HIGHER EDUCATION SERVICES CORPORATION, Respondent, v. Veronica BARRY, Appellant.
• Decision Date: 02 December 1999
• Court: New York Supreme Court — Appellate Division

Page 204

699 N.Y.S.2d 204

NEW YORK STATE HIGHER EDUCATION SERVICES CORPORATION, Respondent, v. Veronica BARRY, Appellant.

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

Dec. 2, 1999.

Veronica R. Barry, New York City, appellant in person.

Cheryl B. Fisher, Higher Education Services, Albany, for respondent.

Before: MIKOLL, J.P., CREW III, YESAWICH JR., SPAIN and MUGGLIN, JJ.

YESAWICH JR., J.

Appeal from an order of the Supreme Court (Malone Jr., J.), entered April 15, 1999 in Albany County, which, inter alia, sua sponte granted plaintiff summary judgment on the issue of liability.

After defendant, who from 1981 until 1985 obtained various student loans from Northfield Savings Bank, allegedly defaulted on the loans, plaintiff honored its guarantee to Northfield (see, Education Law 680[b] ) and thereafter commenced this action to collect the principal and accrued interest from defendant. Appearing pro se, defendant moved to dismiss the complaint, contending, among other things, that plaintiff's action was time barred and that she had been denied due process. Supreme Court, sua sponte, converted defendant's motion to one for summary judgment and granted judgment in plaintiff's favor on the issue of liability. Defendant appeals.

Initially, Supreme Court did not err when, acting on its own initiative, it treated the instant motion as one for summary judgment. Despite the absence of sufficient notice to the parties of the court's intent to proceed in this manner (see, CPLR 3211[c]; Phillips v. Sollami, 220 A.D.2d 946, 947, 632 N.Y.S.2d 859), this omission was not fatal since the parties laid bare their proof (see, Capital Wireless Corp. v. Deloitte & Touche, 216 A.D.2d 663, 665-666, 627 N.Y.S.2d 794).

Turning to the merits, we find that the record amply supports Supreme Court's decision. Regarding defendant's claim that the court relied upon inadmissable hearsay in reaching its determination, it suffices to note that the evidence complained of consisted of business records, a well-recognized exception to the hearsay rule (see, Tomanelli v. Lizda Realty, 174 A.D.2d 889, 890, 571 N.Y.S.2d 171). And defendant's challenge to the sufficiency of the evidence is unavailing for the record contains promissory notes originated by Northfield, signed by defendant and guaranteed by plaintiff, as well as additional documents establishing that defendant had not made any payments from 1991 through 1997, all of which constituted prima facie proof of the...