                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 10, 2015                   521081
________________________________

CREATIVE CULINARY CONCEPTS,
   LLC, et al.,
                    Appellants,
      v                                     MEMORANDUM AND ORDER

SAM GRECO CONSTRUCTION, INC.,
                    Respondent.
________________________________


Calendar Date:   October 16, 2015

Before:   McCarthy, J.P., Rose, Lynch and Devine, JJ.

                             __________


      Linnan & Fallon, LLP, Albany (James D. Linnan of counsel),
for appellants.

      Harris Beach, PLLC, Albany (Mark J. McCarthy of counsel),
for respondent.

                             __________


Lynch, J.

      Appeals (1) from an order of the Supreme Court (O'Connor,
J.), entered July 28, 2014 in Albany County, which granted
defendant's motion for summary judgment dismissing the complaint
and for judgment on its counterclaims, and (2) from the judgment
entered thereon.

      In January 2009, plaintiff Creative Culinary Concepts, LLC
entered into an agreement with defendant to provide certain
construction services related to the opening of Creative's
restaurant. Two additional agreements were executed in March
2009 to add certain customized work. The restaurant opened at
the end of April 2009, with a total cost of construction of
$382,423. In September 2009, defendant and Creative entered into
                              -2-                521081

an agreement (hereinafter the promissory note) wherein it was
agreed that the unpaid balance due of $302,573 would be paid
through, among other things, 24 monthly installment payments.
The promissory note (and a subsequent modification) was
personally guaranteed by plaintiff James Linnan, a member of
Creative and its lawyer. After Creative failed to make the
required monthly payments, defendant demanded payment of the
remaining balance in full. In October 2011, plaintiffs commenced
this action asserting claims of negligence, breach of contract
and breach of warranty relative to the work performed at the
restaurant. Plaintiffs also alleged that defendant fraudulently
induced Linnan to sign the promissory note and personally
guarantee Creative's debt to defendant. Defendant asserted two
counterclaims, one to recover the outstanding debt pursuant to
the promissory note and the second seeking counsel fees.
Defendant then moved for summary judgment dismissing the
complaint and for judgment on its counterclaims. Supreme Court
granted defendant's motion in its entirety and a judgment in its
favor was thereafter entered. Plaintiffs now appeal.

      We agree with Supreme Court's finding that defendant
demonstrated prima facie entitlement to summary judgment on its
counterclaims through the undisputed evidence of the executed
promissory note and guarantee, as well as plaintiffs' default in
payment (see Waehner v Northwest Bay Partners, Ltd., 30 AD3d 799,
800-801 [2006]; Friends Lbr. v Cornell Dev. Corp., 243 AD2d 886,
887 [1997]). Consequently, the court properly shifted the burden
to plaintiffs to demonstrate "the existence of a triable issue of
fact with respect to a bona fide defense" (Friends Lbr. v Cornell
Dev. Corp., 243 AD2d at 887; accord Mastro v Carroll, 296 AD2d
802, 802 [2002]). To this end, plaintiffs asserted that the
promissory note was not supported by consideration and that the
promissory note and guarantee were induced by defendant's
fraudulent promises to repair or replace defective work.

      Generally, lack of consideration (see Samet v Binson, 122
AD3d 710, 711 [2014]) and fraud in the inducement (see Newcourt
Small Bus. Lending Corp. v Grillers Casual Dining Group, 284 AD2d
681, 683 [2001]) may be bona fide defenses to a promissory note.
Here, however, plaintiffs failed to demonstrate the existence of
either defense. First, plaintiffs' wholly conclusory claim that
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defendant represented that it would make certain repairs is
without record support. Moreover, it is belied by the terms of
the note, drafted by Linnan, which expressly states that
defendant "successfully and satisfactorily completed [the]
construction project in a timely manner to [plaintiffs']
satisfaction" (see Security Mut. Life Ins. Co. v Member Servs.,
Inc., 46 AD3d 1077, 1078 [2007]; Friends Lbr. v Cornell Dev.
Corp., 243 AD2d at 887-888). Second, because it is apparent from
its terms that the consideration for the note and guarantee was
an extension and restructuring of plaintiffs' antecedent
obligation to defendant, there are no factual questions with
regard to plaintiffs' lack of consideration defense (see Mills v
Chauvin, 103 AD3d 1041, 1049-1050 [2013]; Friends Lbr. v Cornell
Dev. Corp., 243 AD2d at 887-888).

      Finally, the promissory note expressly provided that in the
event of plaintiffs' default, defendant would be entitled to
counsel fees. We discern no abuse of discretion and, therefore,
decline to disturb Supreme Court's award of counsel fees (see
Harris Bay Yacht Club v Harris, 230 AD2d 931, 934 [1996]).

     McCarthy, J.P., Rose and Devine, JJ., concur.



      ORDERED that the order and judgment are affirmed, with
costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
