Ordered that the order is modified, on the law, by deleting the provision thereof granting the defendant’s cross motion, in effect, pursuant to CPLR 3211 (a) (7) to dismiss the action for failure to state a cause of action, and substituting therefor provisions denying the cross motion and deeming the moving and answering papers to the plaintiffs motion for summary judgment in lieu of complaint to be the complaint and answer, respectively; as so modified, the order is affirmed, with costs to the plaintiff.
The plaintiff sought to recover the principal sum of $600,000 allegedly owed to him pursuant to a promissory note (hereinafter the note), dated February 11, 2005, executed in his favor by the defendant. The note defined the “Due Date” when the “principal shall be payable” as taking place “upon completion
Following the commencement of the instant action by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendant cross-moved, in effect, pursuant to CPLR 3211 (a) (7) to dismiss the action for failure to state a cause of action. The Supreme Court denied the plaintiff’s motion for summary judgment in lieu of complaint and granted the defendant’s cross motion. We modify.
The Supreme Court properly denied the plaintiffs motion for summary judgment in lieu of complaint (see CPLR 3213). “To establish prima facie entitlement to judgment as a matter of law with respect to a promissory note, a plaintiff must show the existence of a promissory note executed by the defendant containing an unequivocal and unconditional obligation to repay and the failure of the defendant to pay in accordance with the note’s terms” (Jin Sheng He v Sing Huei Chang, 83 AD3d 788, 789 [2011]; see Lugli v Johnston, 78 AD3d 1133, 1135 [2010]). Here, the note defined the “Due Date” as “payable upon completion and sale” of the property. Inasmuch as the property has not been sold, the plaintiff has not shown a failure by the defendant to pay in accordance with the note’s express terms (see Superior Fid. Assur., Ltd. v Schwartz, 69 AD3d 924, 926 [2010]).
However, the Supreme should not have granted the defendant’s cross motion, in effect, pursuant to CPLR 3211 (a) (7) to dismiss the action for failure to state a cause of action. On a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must accept the facts alleged as true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Prestige Caterers, Inc. v Siegel, 88 AD3d 679 [2011]; Peery v United Capital Corp., 84 AD3d 1201 [2011]; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38 [2006]).
In light of the foregoing, the Supreme Court should have deemed the moving and answering papers to the plaintiffs motion to be the complaint and answer, respectively (see Weissman v Sinorm Deli, 88 NY2d 437, 445 [1996]; cf. Schulz v Barrows, 94 NY2d 624 [2000]). Florio, J.E, Belen, Roman and Sgroi, JJ., concur.