Spodek v. Park Property Development Associates
| Decision Date | 12 July 1999 |
| Citation | 693 N.Y.S.2d 199,263 A.D.2d 478 |
| Parties | Rosalind T. SPODEK, etc., appellant, v. PARK PROPERTY DEVELOPMENT ASSOCIATES, etc., respondent. |
| Court | New York Supreme Court — Appellate Division |
Reisman, Peirez, Reisman & Calica, LLP, Garden City, N.Y. (Robert M. Calica and Jennifer B. Adler of counsel), for appellant.
Brown Raysman Millstein Felder & Steiner, LLP, New York, N.Y. (Kenneth M. Block and Kimberly D. Westcott of counsel), for respondent.
DAVID S. RITTER, J.P., WILLIAM C. THOMPSON, MYRIAM J. ALTMAN and WILLIAM D. FRIEDMANN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover on a bond, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Segal, J.), dated June 29, 1998, as denied her motion for summary judgment on the complaint.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion is granted.
The plaintiff made out a prima facie case of entitlement to summary judgment by proof of the bond and the admitted failure of the defendant to make the interest and principal payments on the bond. It was therefore incumbent upon the defendant to come forward with proof of evidentiary facts showing the existence of a triable issue with respect to a bona fide defense (see, Falco v. Thorne, 225 A.D.2d 582, 639 N.Y.S.2d 106; Gateway State Bank v. Shangri-La Private Club for Women, 113 A.D.2d 791, 493 N.Y.S.2d 226, affd. 67 N.Y.2d 627, 499 N.Y.S.2d 679, 490 N.E.2d 546).
The defendant contended that summary judgment must be denied because the plaintiff is the mere nominee of her husband, who is the former managing partner of the defendant. The defendant also contended that it is entitled to an offset due to the plaintiff's husband's mismanagement of the defendant's assets. However, even assuming that the plaintiff is her husband's nominee, the defendant failed to raise any triable issue of fact with respect to an offset defense.
The defendant submitted a financial schedule it claimed had been prepared by the accounting firm of one of its partners, which purported to show that the defendant suffered losses of $1,152,287 due to the mismanagement of the plaintiff's husband. The schedule was not verified or certified, and the defendant failed to submit an affidavit by the person who prepared it. Therefore, the defendant's submission was without any evidentiary value and was insufficient to defeat the plaintiff's summary judgment motion (see,...
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