Joswick v. Rossi

— In an action to recover on a promissory note, brought by motion pursuant to CPLR 3213 for summary judgment in lieu of complaint, the defendants appeal from a judgment of the Supreme Court, Richmond County (Amann, J.), entered January 7, 1991, which, upon an order granting the plaintiffs’ motion, is in favor of the plaintiffs and against them in the principal sum of $31,000. The defendants’ notice of appeal from the order entered October 5, 1990, is deemed a premature notice of appeal from the judgment (CPLR 5520 M).

Ordered that the judgment is affirmed, with costs.

We reject the defendants’ contention that since the promissory note in question refers to a mortgage to define events of default, the note does not qualify as an instrument for the payment of money pursuant to CPLR 3213. As it is undisputed that no such mortgage was ever in fact executed, there is no other document to look at to define an event of default. Thus, the plaintiffs established a prima facie case by proof of the note and the failure to make payments (see, Seaman-Andwall Corp. v Wright Mach. Corp., 31 AD2d 136, affd 29 NY2d 617; cf., Manufacturers Hanover Trust Co. v Hixon, 124 AD2d 488). We also reject the defendants’ contention that their alleged defense or counterclaim prevents an award of summary judgment to the plaintiffs (see, Danann Realty Corp. v Harris, 5 NY2d 317). Finally, the court’s award of counsel fees was reasonable. Mangano, P. J., O’Brien, Ritter and Pizzuto, JJ., concur.