Tuesday, July 2, 2013

Summary judgment in lieu of complaint, and collateral estoppel.

Practice point:  Pursuant to CPLR 3213, the plaintiff commenced this action to recover on a promissory note by filing a summons with notice of motion for summary judgment in lieu of complaint. The motion was denied. The plaintiff established his prima facie entitlement to judgment as a matter of law by demonstrating the existence of the promissory note executed by the defendant, the unconditional terms of repayment, and the defendant's default thereunder. However, in opposition, the defendant raised a  fact question as to whether the note was procured through coercion and duress.

Student note:  The plaintiff failed to demonstrate that the defendant should be collaterally estopped from raising this issue, as the plaintiff failed to demonstrate that the issue was necessarily decided against the defendant in a prior action commenced by the plaintiff to set aside a fraudulent conveyance pursuant to Debtor and Creditor Law §§ 273 and 276.

Case:  Baldeo v. Rambaran, NY Slip Op 04763 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Summary judgment in a Labor Law action, attorneys' fees, and amending a bill of particulars.