Ro & Ke, Inc. v. Jin-Hu Stevens
| Decision Date | 28 April 2009 |
| Docket Number | 2008-07046. |
| Citation | 2009 NY Slip Op 03501,61 A.D.3d 953,878 N.Y.S.2d 394 |
| Parties | RO & KE, INC., Respondent, v. JIN-HU STEVENS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is modified, on the law, (1) by deleting the provision thereof granting the plaintiff's motion for summary judgment in lieu of complaint pursuant to CPLR 3213, and substituting therefor a provision denying the motion, and (2) by adding a provision thereto directing the plaintiff to join Hyunik Seo as a party defendant; as so modified, the order is affirmed, with costs to the defendant; and it is further,
Ordered that the time for the plaintiff to join Hyunik Seo as a party defendant to this action is extended until 30 days after service upon him of a copy of this decision and order.
"[A] document comes within CPLR 3213 if a prima facie case would be made out by the instrument and a failure to make the payments called for by its terms ... The instrument does not qualify if outside proof is needed, other than simple proof of nonpayment or a similar de minimis deviation from the face of the document" (Weissman v Sinorm Deli, 88 NY2d 437, 444 [1996] [internal quotation marks omitted]; see Stallone v Rostek, 27 AD3d 449, 450 [2006]). Here, the plaintiff made a prima facie showing of entitlement to judgment as a matter of law by proving the existence of the subject note and nonpayment according to its terms (see Black Rock, Inc. v Z Best Car Wash, Inc., 27 AD3d 409, 409 [2006]; James DeLuca, M.D., P. C. v North Shore Med. Imaging, 287 AD2d 488 [2001]; A. Bella Food Corp. v Luigi's Italian Deli, 243 AD2d 592, 592 [1997]). In response to the plaintiff's prima facie showing, the defendant raised a triable issue of fact regarding the validity of the assignment under which the defendant allegedly assumed the obligations of Hyunik Seo, a nonparty to this action, who was the original borrower on the note. Therefore, the motion for summary judgment in lieu of complaint should have been denied (see Sillman v Twentieth Century-Fox Film Corp., 3...
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...the face of the document” ( Weissman v. Sinorm Deli, supra, 88 N.Y.2d at 444, 646 N.Y.S.2d 308, 669 N.E.2d 242; Ro & Ke, Inc. v. Stevens, 61 A.D.3d 953, 878 N.Y.S.2d 394; Stallone v. Rostek, 27 A.D.3d 449, 809 N.Y.S.2d 920). It has been observed that “disputes which involve only the non-pay......
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