        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

499
CA 11-01518
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


MICHAEL SINGH SANDU, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

KULWINDER SINGH SANDU, DEFENDANT-APPELLANT.


JASON L. SCHMIDT, FREDONIA, FOR DEFENDANT-APPELLANT.

BORINS, HALPERN & PASKOWITZ, BUFFALO (MICHAEL PASKOWITZ OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an amended order and judgment (one paper) of the
Supreme Court, Erie County (John A. Michalek, J.), entered October 14,
2010. The amended order and judgment granted the motion of plaintiff
for summary judgment in lieu of complaint and granted plaintiff
judgment in the sum of $37,500, plus interest, costs and
disbursements.

     It is hereby ORDERED that the amended order and judgment so
appealed from is unanimously affirmed without costs.

     Memorandum: Defendant appeals from an amended order and judgment
that granted plaintiff’s motion for summary judgment in lieu of
complaint pursuant to CPLR 3213 and awarded him damages in the amount
of the balance due on a promissory note executed by NANAK Hospitality,
LLC (NANAK) and personally guaranteed by defendant, a partner of
NANAK. We affirm.

     Plaintiff met his initial burden on the motion by submitting the
promissory note, which contained defendant’s personal guarantee, and
evidence of NANAK’s default (see LaMar v Vasile [appeal No. 4], 49
AD3d 1218, 1219; Di Marco v Bombard Car Co., Inc., 11 AD3d 960, 960-
961). In opposition thereto, defendant failed to “come forward with
evidentiary proof showing the existence of a triable issue of fact
with respect to a bona fide defense of the note” (Judarl v Cycletech,
Inc., 246 AD2d 736, 737; see Ring v Jones, 13 AD3d 1078, 1078).
Defendant’s bare assertion that he does not recall signing the
promissory note is insufficient to raise a triable issue of fact
whether he personally guaranteed the note (see generally John Deere
Ins. Co. v GBE/Alasia Corp., 57 AD3d 620, 621; Bank of Am. v Tatham,
305 AD2d 183, 183). We reject defendant’s contention that the
personal guarantee was not supported by consideration inasmuch as
defendant concedes that the promissory note was executed in exchange
for plaintiff’s release of his entire interest in NANAK, and defendant
                                 -2-                           499
                                                         CA 11-01518

benefitted from that release as a remaining partner of the company.
We have reviewed defendant’s remaining contentions and conclude that
they are without merit.




Entered:   April 27, 2012                       Frances E. Cafarell
                                                Clerk of the Court
