Pennsylvania Higher Education Assistance Agency v. Musheyev, 2009-00714

• Court: New York Supreme Court Appellate Division
• Citation: 2009 NY Slip Op 9010,888 N.Y.S.2d 911,68 A.D.3d 736
• Docket Number: 2009-00714
• Parties: PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY, Respondent, v. ALEXANDER N. MUSHEYEV, Appellant.
• Decision Date: 01 December 2009

68 A.D.3d 736 2009 NY Slip Op 9010 888 N.Y.S.2d 911 PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY, Respondent,
v.
ALEXANDER N. MUSHEYEV, Appellant. 2009-00714 Appellate Division of the Supreme Court of New York, Second Department. Decided December 1, 2009.

In an action to recover on a promissory note, the defendant appeals from an order of the Supreme Court, Queens County (Rosengarten, J.), dated January 8, 2009, which, inter alia, granted the plaintiff's motion for summary judgment on the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court properly granted the plaintiff's motion for summary judgment on the complaint. The plaintiff established its prima facie entitlement to judgment as a matter of law by submitting proof of the existence of the promissory note executed by the defendant and the defendant's default in making payments pursuant to that note (see Verela v Citrus Lake Dev., Inc., 53 AD3d 574, 575 [2008]; Levien v Allen, 52 AD3d 578 [2008]; Anand v Wilson, 32 AD3d 808 [2006]). In opposition, the defendant failed to raise a triable issue of fact with respect to a bona fide defense (see Quest Commercial, LLC v Rovner, 35 AD3d 576 [2006]; Famolaro v Crest Offset, Inc., 24 AD3d 604 [2005]; Bank of N.Y. v Vega Tech. USA, LLC, 18 AD3d 678 [2005]). Contrary to the defendant's contention, his claim

68 A.D.3d 737

that the 2005 agreement resolving then-ongoing litigation amended the terms of the promissory note is not supported by the evidence (see Raico v Concorde Funding Group, 60 AD3d 834, 836 [2009]).

The defendant's remaining contention is without merit.

MASTRO, J.P., BELEN, HALL and AUSTIN, JJ., concur.