Spielman v. Acme Nat. Sales Co., Inc. (Delaware)

• Citation: 159 A.D.2d 918,553 N.Y.S.2d 532
• Parties: Michael SPIELMAN, Respondent, v. ACME NATIONAL SALES COMPANY, INC. (DELAWARE), Appellant.
• Decision Date: 29 March 1990
• Court: New York Supreme Court Appellate Division

Page 532

553 N.Y.S.2d 532

159 A.D.2d 918

Michael SPIELMAN, Respondent, v. ACME NATIONAL SALES COMPANY, INC. (DELAWARE), Appellant.

Supreme Court, Appellate Division,

Third Department.

March 29, 1990.

Bachner, Tally, Polevoy & Misher (Michael J. Matsler, of counsel), New York City, for appellant.

Rapport, Meyers, Griffen & Whitbeck (Jason L. Shaw, of counsel), Hudson, for respondent.

Before MAHONEY, P.J., and KANE, CASEY, LEVINE and MERCURE, JJ.

MERCURE, Justice.

Appeal from a judgment of the Supreme Court (Cobb, J.), entered June 19, 1989 in Columbia County, which granted plaintiff's motion for summary judgment in lieu of complaint.

By motion for summary judgment in lieu of complaint pursuant to CPLR 3213, plaintiff commenced this action to recover upon a promissory note for the payment of money only. The note was given as partial consideration for the sale of the assets of the former Acme National Sales Company, Inc. (hereinafter Acme). At the time of the purchase, the parties entered into a collateral noncompetition agreement which provided, inter alia, that plaintiff would not compete with defendant for seven years.

Plaintiff, having established a prima facie case by proof of the note and default in payment thereon, is entitled to summary judgment in the absence of the submission by defendant of evidentiary facts showing the existence of a triable issue with respect to a bona fide defense (Conolog Corp. v. P.R. Elecs. Export, 140 A.D.2d 190, 191, 528 N.Y.S.2d 44; see, Gateway State Bank v. Shangri-La Private Club for Women 113 A.D.2d 791, 792, 493 N.Y.S.2d 226, affd. 67 N.Y.2d 627, 499 N.Y.S.2d 679, 490 N.E.2d 546; Seaman-Andwall Corp. v. Wright Mach. Corp., 31 A.D.2d 136, 137, 295 N.Y.S.2d 752, affd. 29 N.Y.2d 617, 324 N.Y.S.2d 410, 273 N.E.2d 138). To defeat a motion for summary judgment, the opposing party must assemble and lay bare its proof to demonstrate that there are genuine triable issues (Kornfeld v. NRX Technologies, 93 A.D.2d 772, 773, 461 N.Y.S.2d 342, affd. 62 N.Y.2d 686, 476 N.Y.S.2d 523, 465 N.E.2d 30) and reliance upon conclusory assertions, conjecture, mere suspicion or surmise will not suffice for this purpose (id.). For the reasons that follow, we agree with Supreme Court that defendant has failed to raise a triable issue of fact and accordingly affirm.

Initially, we reject defendant's bald allegations of fraud and misrepresentation concerning Acme's financial condition. First, defendant has been in possession of the assets of Acme and has operated the business for a period in excess of three years. Second, defendant obtained numerous reports from auditors and accountants both before and after the purchase. Notably, defendant has failed...