

Luiso v Poehlsen (2015 NY Slip Op 01245)





Luiso v Poehlsen


2015 NY Slip Op 01245


Decided on February 11, 2015


Appellate Division, Second 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 February 11, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
LEONARD B. AUSTIN
JOSEPH J. MALTESE
BETSY BARROS, JJ.


2014-06446
 (Index No. 53109/14)

[*1]Michael Luiso, et al., appellants, 
vRoger Poehlsen, respondent.


Brian R. Hoch, White Plains, N.Y., for appellants.
Joseph Cinquemani, White Plains, N.Y., for respondent.

DECISION & ORDER
In an action to recover upon an instrument for the payment of money only, brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Smith, J.), dated May 28, 2014, which denied the motion.
ORDERED that the order is affirmed, with costs.
The defendant executed a promissory note on March 10, 2012, promising to repay the plaintiffs $75,000 plus interest by March 9, 2013. On March 4, 2014, the plaintiffs filed a summons and a notice of motion for summary judgment in lieu of complaint pursuant to CPLR 3213 with supporting papers. The defendant opposed the motion, arguing that his obligation under the note had been satisfied. The Supreme Court denied the motion.
The plaintiffs established their prima facie entitlement to judgment as a matter of law pursuant to CPLR 3213 by submitting proof that the defendant executed the promissory note, which contained an unconditional promise to pay a sum certain by March 9, 2013, and failed to pay in accordance with the terms of the note (see Weissman v Sinorm Deli, 88 NY2d 437, 444; Von Fricken v Schaefer, 118 AD3d 869, 870; Jin Sheng He v Sing Huei Chang, 83 AD3d 788, 789; Lugli v Johnson, 78 AD3d 1133, 1134). However, in opposition, the defendant demonstrated the existence of a triable issue of fact as to whether his obligation under the note had been satisfied by payment of the amount due in full by November 30, 2012 (see Agai v Diontech Consulting, Inc., 64 AD3d 622, 623; Khoury v Khoury, 280 AD2d 453, 454).
Accordingly, the Supreme Court properly denied the plaintiffs' motion for summary judgment in lieu of complaint.
MASTRO, J.P., AUSTIN, MALTESE and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


