Zitel Corp. v. Fonar Corp.

• Decision Date: 05 December 1994
• Citation: 210 A.D.2d 221,619 N.Y.S.2d 964
• Parties: ZITEL CORPORATION, Appellant, v. FONAR CORPORATION, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 964

619 N.Y.S.2d 964

210 A.D.2d 221

ZITEL CORPORATION, Appellant, v. FONAR CORPORATION, Respondent.

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

Dec. 5, 1994.

Nicholas & Fotiadis, Bellmore (John Fotiadis, of counsel), for appellant.

Shiff & Tisman, New York City (Laurence Shiff and Stephen E. Tisman, of counsel), for respondent.

In an action to enforce a promissory note, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Lama, J.), dated June 4, 1993, which denied its motion for summary judgment in lieu of a complaint.

ORDERED that the order is reversed, on the law, with costs, the plaintiff's motion for summary judgment in lieu of a complaint is granted, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of an appropriate judgment.

The plaintiff established prima facie its entitlement to judgment as a matter of law by producing the promissory note executed by the defendant and by establishing that the defendant defaulted on the note (see, Mlcoch v. Smith, 173 A.D.2d 443, 444, 570 N.Y.S.2d 70). It was then incumbent upon the defendant to demonstrate, by admissible evidence, the existence of a genuine triable issue of fact. The defendant's production of a partially executed assignment agreement was insufficient to defeat the plaintiff's motion for summary judgment in lieu of a complaint. Accordingly, the Supreme Court should have granted the plaintiff's motion (see, CPLR 3213).

BRACKEN, J.P., and BALLETTA, RITTER, PIZZUTO and FLORIO, JJ., concur.