

Blumenstein v Waspit Group, Inc. (2016 NY Slip Op 05075)





Blumenstein v Waspit Group, Inc.


2016 NY Slip Op 05075


Decided on June 28, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on June 28, 2016

Sweeny, J.P., Acosta, Feinman, Kapnick, Webber, JJ.


1581 651168/14

[*1]David Blumenstein, Plaintiff-Appellant,
vWaspit Group, Inc., et al., Defendants-Respondents.


Blackstone Law Group LLP, New York (Alexander J. Urbelis of counsel), for appellant.
Mintz & Fraade, P.C., New York (Alan P. Fraade of counsel), for respondents.

Order, Supreme Court, New York County (Donna M. Mills, J.), entered October 20, 2014, which granted defendants' motion for reargument, and, upon reargument, vacated so much of a prior order as granted plaintiff's motion for summary judgment in lieu of complaint (CPLR 3213), and denied plaintiff's motion, unanimously reversed, on the law, with costs, and plaintiff's motion granted. The Clerk is directed to enter judgment accordingly.
Plaintiff established his entitlement to summary judgment in lieu of complaint by submitting a promissory note executed by defendants and proof of defendants' failure to make payments according to its terms (see Zyskind v FaceCake Mktg. Tech., Inc., 101 AD3d 550, 551 [1st Dept 2012]).
In opposition, defendants failed to raise an issue of fact as to a bona fide defense (see id.). Their argument that the note was usurious improperly relies on facts extrinsic to the note (see Alard, L.L.C. v Weiss, 1 AD3d 131 [1st Dept 2003]; see generally Interman Indus. Prods. v R.S.M. Electron Power, 37 NY2d 151, 155 [1975]). Their argument that the note was not an instrument for the payment of money only is defeated by their failure to establish that the note and the deed of settlement executed simultaneously with it were inextricably intertwined (compare Technical Tape, Inc. v Spray Tuck, 131 AD2d 404, 406 [1st Dept 1987] ["The note is expressly subject to the terms and conditions of the agreement of sale . . . [which] outlines a complicated formula for the finalization of the price, and requires the production of documents and records in relation thereto"]). While the note states that it was executed "pursuant to" and "in consideration of" the deed, it does not state that it was "subject to the terms and conditions of" the deed (see id.). Nothing in the deed affects the value of the principal due under the note or otherwise alters defendants' obligations to pay under the note (see e.g. Boland v Indah Kiat Fin. (IV) Mauritius, 291 AD2d 342 [1st Dept 2002]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 28, 2016
DEPUTY CLERK


