Ahern v. Miloslau

L. PRISCILLA HALL

Frankfort & Koltun, Deer Park, N.Y. (Scott A. Koltun of counsel), for appellant.
L. PRISCILLA HALL, J.P., SANDRA L. SGROI, ROBERT J. MILLER and SYLVIA O. HINDS–RADIX, JJ.

In an action to recover on a promissory note, commenced by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Putnam County (Lubell, J.), dated May 16, 2014, as denied the motion.

ORDERED that the order is affirmed insofar as appealed from, with costs.

“To establish prima facie entitlement to judgment as a matter of law with respect to a promissory note, a plaintiff must show the existence of a promissory note, executed by the defendant, containing an unequivocal and unconditional obligation to repay, and the failure by the defendant to pay in accordance with the note's terms” ( Lugli v. Johnston, 78 A.D.3d 1133, 1134, 912 N.Y.S.2d 108; see Gullery v. Imburgio, 74 A.D.3d 1022, 905 N.Y.S.2d 221). Once a plaintiff makes such a showing, the burden shifts to the defendant to establish by admissible evidence the existence of a triable issue of fact with respect to a bona fide defense ( see Quest Commercial, LLC v. Rovner, 35 A.D.3d 576, 576, 825 N.Y.S.2d 766).

Here, the plaintiff established her prima facie entitlement to judgment as a matter of law by submitting the promissory note, the corresponding agreement between the parties, and her affidavit asserting that the defendants failed to pay the loan in accordance with the terms of the note ( see Lugli v. Johnston, 78 A.D.3d at 1134, 912 N.Y.S.2d 108; Verela v. Citrus Lake Dev., Inc., 53 A.D.3d 574, 575, 862 N.Y.S.2d 96).

In opposition, however, the defendant Michael Miloslau presented sufficient evidence to raise a triable issue of fact as to the applicability of the defense of usury ( see Lugli v. Johnston, 78 A.D.3d at 1135, 912 N.Y.S.2d 108; O'Donovan v. Galinski, 62 A.D.3d 769, 769–770, 878 N.Y.S.2d 443; Rhee v. Dahan, 115 Misc.2d 559, 454 N.Y.S.2d 371 [Sup.Ct., N.Y. County] ).

Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment in lieu of complaint.