COLADONATO v. TUTTO PIZZA

It is well settled that proof showing due execution and default in payment on a promissory note, which is not disputed here, establishes a prima facie case and plaintiff is entitled to summary judgment unless the defendant submits evidentiary proof sufficient to raise a genuine triable issue of fact with respect to the note ( see, D'Urso v. Durso Supermarkets, 201 A.D.2d 251, lv dismissed 83 N.Y.2d 906; European Am. Bank v. Strab Constr. Corp., 196 A.D.2d 479). Here, the IAS Court properly found that none of defendant's purported defenses raise a question of fact precluding summary judgment. Defendant can separately litigate whatever counterclaims that he may have against plaintiff, and, indeed, the court severed the remaining portion of defendant's answer. We have considered defendant's other points and find them unpersuasive.

Concur — Sullivan, J.P., Rosenberger, Rubin and Andrias, JJ.