Rachmany v. Regev

• Decision Date: 19 March 2014
• Citation: 115 A.D.3d 840,2014 N.Y. Slip Op. 01736,982 N.Y.S.2d 352
• Parties: Lior RACHMANY, respondent, v. Menachem REGEV, appellant.
• Court: New York Supreme Court — Appellate Division

115 A.D.3d 840

982 N.Y.S.2d 352

2014 N.Y. Slip Op. 01736

Lior RACHMANY, respondent,

v.Menachem REGEV, appellant.

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

March 19, 2014.

Menachem Regev, Hewlett, N.Y., appellant pro se.

Jaime Lathrop, P.C., Brooklyn, N.Y., for respondent.

In an action to recover on a promissory note, brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendant appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Adams, J.), entered April 19, 2012, as granted the plaintiff's motion for summary judgment and denied that branch of his cross motion which was for a change of venue, and (2) from a judgment of the same court dated June 22, 2012, which, upon the order, is in favor of the plaintiff and against him in the principal sum of $90,000. The notice of appeal from the order is deemed also to be a notice of appeal from the judgment ( see CPLR 5501[c] ).

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is affirmed; and it is further, ORDERED that one bill of costs is awarded to the plaintiff.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( see CPLR 5501[a][1] ).

The Supreme Court properly found that the plaintiff made a prima facie showing of his entitlement to judgment as a matter of law by establishing the existence of a promissory note (hereinafter the note) which the defendant executed, individually, which contained an unequivocal and unconditional obligation to repay, and that the defendant defaulted in complying with the terms of the note ( see Gullery v. Imburgio, 74 A.D.3d 1022, 905 N.Y.S.2d 221;Pennsylvania Higher Educ. Assistance Agency v. Musheyev, 68 A.D.3d 736, 888 N.Y.S.2d 911;Verela v. Citrus Lake Dev., Inc., 53 A.D.3d 574, 575, 862 N.Y.S.2d 96;Famolaro v. Crest Offset, Inc., 24 A.D.3d 604, 604–605, 807 N.Y.S.2d 387). Contrary to his contentions, the defendant failed to satisfy his burden of establishing the existence of a triable issue of fact by submitting admissible evidence of a bona fide defense to nonpayment ( see Gullery v. Imburgio, 74 A.D.3d at 1023, 905 N.Y.S.2d 221;Quest Commercial, LLC v. Rovner, 35 A.D.3d 576, 825 N.Y.S.2d 766;Bank of N.Y. v. Vega Tech. USA, LLC, 18 A.D.3d 678, 679, 794 N.Y.S.2d 922). The defendant's various contentions regarding the alleged circumstances under which the note was executed, including that he signed the note in a representative capacity and is not personally liable on the note, are purely conclusory and unsupported and/or belied by the record and, hence, insufficient to defeat the plaintiff's motion ( see Gullery v. Imburgio,...