| Preciosa USA, Inc. v Weiss & Biheller, MDSE, Corp. |
| 2015 NY Slip Op 03515 |
| Decided on April 29, 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 April 29, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
SHERI S. ROMAN
SANDRA L. SGROI
COLLEEN D. DUFFY, JJ.
2014-05540
(Index No. 62301/13)
v
Weiss & Biheller, MDSE, Corp., et al., appellants.
Peter J. Constantine, Yonkers, N.Y., for appellants.
Hiscock & Barclay, LLP, New York, N.Y. (Philip A. Bramson of counsel), 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 defendants appeal from an order of the Supreme Court, Westchester County (Jamieson, J.), dated April 9, 2014, which granted the motion.
ORDERED that the order is affirmed, with costs.
The plaintiff established its prima facie entitlement to judgment as a matter of law by submitting, among other things, the subject promissory note, which contained an unequivocal and unconditional obligation to pay, and proof of the defendants' failure to make payments on the note according to its terms (see Nunez v Channel Grocery & Deli Corp., 124 AD3d 734; Griffon V, LLC v 11 E. 36th, LLC, 90 AD3d 705, 706).
In opposition to the plaintiff's prima facie showing, the defendants failed to raise a triable issue of fact (see East N.Y. Sav. Bank v Baccaray, 214 AD2d 601, 603). The defendants' contention, raised for the first time on appeal, that the Supreme Court improperly considered an unsworn affidavit from the plaintiff's principal, is not properly before this Court.
Furthermore, contrary to the defendants' contention, the subject note was not "inextricably intertwined" with certain other allegedly related agreements the parties entered into, such that the plaintiff's alleged breach of those agreements may create a defense to payment on the note (New York Community Bank v Fessler, 88 AD3d 667, 668; cf. Fitzpatrick v Animal Care Hosp., PLLC, 104 AD3d 1078, 1080; Lorber v Morovati, 83 AD3d 799, 800).
Accordingly, the Supreme Court correctly granted the plaintiff's motion for summary judgment in lieu of complaint pursuant to CPLR 3213.
RIVERA, J.P., ROMAN, SGROI and DUFFY, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court