Silber v. Muschel

• Decision Date: 08 February 1993
• Citation: 190 A.D.2d 727,593 N.Y.S.2d 306
• Parties: Zalman SILBER, Respondent-Appellant, v. William MUSCHEL, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 306

593 N.Y.S.2d 306

190 A.D.2d 727

Zalman SILBER, Respondent-Appellant, v. William MUSCHEL, Appellant-Respondent.

Supreme Court, Appellate Division Second Department.

Feb. 8, 1993.

David Jacobs, Brooklyn (Newman & Harrington, P.C. [Thomas R. Newman and Michael L. Gioia], of counsel), for appellant-respondent.

Heller, Horowitz & Feit, P.C., New York City (Eli Feit and Stuart A. Blander, of counsel), for respondent-appellant.

Before MANGANO, P.J., and BRACKEN, SULLIVAN and O'BRIEN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover on a promissory note, the defendant appeals from (1) an order of the Supreme Court, Kings County (G. Aronin, J.), entered May 12, 1992, which granted the plaintiff's motion for summary judgment in lieu of complaint against him in the principal amount of $316,304, and (2) a judgment of the same court, entered May 12, 1992, thereon, and the plaintiff cross-appeals from so much of the same judgment as failed to award prejudgment interest on the principal amount of the note.

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

ORDERED that the judgment is reversed, on the law, the order entered May 12, 1992, is vacated, the plaintiff's motion for summary judgment in lieu of complaint is denied, and the moving papers and the answering papers are deemed the complaint and answer; and it is further,

ORDERED that the defendants are awarded one bill of costs.

The appeal from the intermediate 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 appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501[a][1].

In support of his motion for summary judgment in lieu of complaint (see, CPLR 3213), the plaintiff established a prima facie entitlement to judgment as a matter of law by producing the promissory note executed by the parties and demonstrating that the defendant had defaulted in payment thereon (see, Mlcoch v. Smith, 173 A.D.2d 443, 444, 570 N.Y.S.2d 70; Gittleson v. Dempster, 148 A.D.2d 578, 579, 539 N.Y.S.2d 46). Accordingly, to preclude the plaintiff from enforcing the terms of the note, it became incumbent upon the defendant to establish, by admissible evidence, that a triable issue of fact existed (see, Faustini v. Darth Provisions Co., 131 A.D.2d 809, 810, 517 N.Y.S.2d 174). In the instant matter, the defendant noted that the promissory note was for one year's premium on a life insurance policy and alleged that he was fraudulently induced into executing that insurance contract (see, UCC 3-306[b]. Since the plaintiff does not contend that he held the note in due course, the defense of fraudulent inducement may be asserted against him (see, UCC 3-306[b]; Pan Atlantic Group v. Isacsen, 114 A.D.2d 1022, 495 N.Y.S.2d 458).

We find the defendant has alleged, with sufficient particularity, the perpetration of an affirmative misrepresentation which, if true, would constitute fraud in the inducement (see, Slavin v. Victor, 168 A.D.2d 399, 563 N.Y.S.2d 407; Pan Atlantic Group v. Isacsen, supra ). Specifically, the defendant asserts that the plaintiff...