Monday, October 19, 2015

A motion for summary judgment in lieu of complaint, pursuant to CPLR 3213.

Practice point:  Plaintiff commenced this action to recover on a promissory note and personal guaranty by motion. When the motion court denied, plaintiff appealed, and the Appellate Division reversed.

The Appellate Division found that plaintiff made a prima facie showing of entitlement to judgment as a matter of law by submitting the promissory note, which contained an unequivocal and unconditional obligation to pay, the personal guaranty, and proof of the defendants' failure to make payments on the note according to its terms.  In opposition, defendants failed to raise a triable issue of fact as to a bona fide defense.

Student note:  The motion on an instrument for money only is not defeated by the alleged breach of a related contract absent a showing that the contract and the instrument are intertwined and that the alleged defenses create fact issues. Here, there was a mutual stock sale exchange and purchase agreement, but the Appellate Division found that defendants' evidence failed to establish that the agreement and the promissory note were intertwined, such that a breach of the related agreement might create a defense to payment on the note.

Case:  Chervinsky v. Rezhets, NY Slip Op 07463 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A bus driver's alleged negligence, and a summary judgment motion.