Ordered that leave to appeal is granted from that portion of the order which set down the plaintiff's claim for attorneys' fees and expenses for a hearing; and it is further,
Ordered that the order is reversed, on the law, and the plaintiff's motion is denied, with costs; and it is further,
Ordered that the moving and answering papers are deemed the complaint and answer, respectively.
To obtain summary judgment in lieu of complaint (see, CPLR 3213), the plaintiff must establish his entitlement to judgment as a matter of law (see, Zuckerman v City of New York, 49 N.Y.2d 557, 562; Kruger Pulp Paper Sales v Intact Containers, 100 A.D.2d 894, 895) by proof of the promissory note in question and proof of nonpayment according to its terms (see, Gateway State Bank v Shangri-La Private Club for Women, 113 A.D.2d 791, affd 67 N.Y.2d 627; Badische Bank v Ronel Sys., 36 A.D.2d 763; Seaman-Andwall Corp. v Wright Mach. Corp., 31 A.D.2d 136, 137, affd 29 N.Y.2d 617). It is then incumbent upon the defendants to demonstrate, by admissible evidence, the existence of a triable factual issue (see, Zuckerman v City of New York, supra, at 560; Kruger Pulp Paper Sales v Intact Containers, supra, at 895).
Delivery is the final step in the execution of an instrument and is as essential to impart validity to the paper as is the signature of the maker (see, Irving Trust Co. v Leff, 253 N.Y. 359, 363 ["A check has no valid inception until delivery"]; Matter of Williamson, 264 App. Div. 615, reh denied 264 App. Div. 957 [certified check found after death of drawer in a sealed envelope addressed to payee is not enforceable against drawer's estate]).
Here, it is uncontroverted that the promissory note in question was delivered to an escrow agent and that the note was never delivered to the plaintiff. Therefore, whether the plaintiff is entitled to delivery of the note is a question of fact sufficient to defeat the motion (see, Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255, 259).
We have reviewed the defendant's remaining contentions and find them to be without merit. Mangano, P.J., Sullivan, Thompson and Hart, JJ., concur.