In support of its motion, the plaintiff submitted the note and a revolving line of credit agreement (hereinafter the agreement) which was incorporated into the note in which 11 East agreed to repay, within a specified time period, the outstanding balance of its line of credit. The plaintiff also submitted the guaranties, which were executed on the same date as the note, and evidence demonstrating that 11 East failed to repay the outstanding balance due under the note by the specified time.
Under CPLR 3213, “[w]hen an action is based upon an instrument for the payment of money only . . . the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint.” To establish prima facie entitlement to judgment as a matter of law on the issue of liability with respect to a promissory note, a plaintiff must show the existence of a promissory note executed by the defendant and the failure of the defendant to pay in accordance with the note’s terms (see Jin Sheng He v Sing Huei Chang, 83 AD3d 788, 789 [2011]). To establish prima facie entitlement to judgment as a matter of law on the issue of liability with respect to a guaranty, a plaintiff must submit proof of the underlying note, a guaranty, and the failure of the defendant to make payment in accordance with the terms of those instruments (see
Here, the plaintiff established, prima facie, its entitlement to judgment as a matter of law on the issue of liability by submitting proof of the note and the guaranties, and the defendants’ default under their terms (see Jin Sheng He v Sing Huei Chang, 83 AD3d at 789; North Fork Bank Corp. v Graphic Forms Assoc., Inc., 36 AD3d 676, 676 [2007]; JPMorgan Chase Bank v Gamut-Mitchell, Inc., 27 AD3d 622, 622-623 [2006]; see also European Am. Bank v Cohen, 183 AD2d 453 [1992]; cf. Interman Indus. Prods. v R. S. M. Electron Power, 37 NY2d 151, 155-156 [1975]; Wamco XVII v Chestnut Estates Dev. Corp., 251 AD2d 888, 889 [1998]).
In opposition, the defendants failed to raise a triable issue of fact. The record demonstrates that 11 East expressly waived the defenses now asserted (see Allstate Fin. Corp. v Access Bag N Pack, 245 AD2d 325, 326 [1997]). In any event, the defendants’ conclusory allegation with respect to the defense sounding in fraud in the inducement was insufficient to defeat the plaintiffs entitlement to summary judgment (see Jin Sheng He v Sing Huei Chang, 83 AD3d at 789; Constructamax, Inc. v CBA Assoc., 294 AD2d 460, 460 [2002]; E.D.S. Sec. Sys. v Allyn, 262 AD2d 351 [1999]; Bennell Hanover Assoc. v Neilson, 215 AD2d 710, 711 [1995]; Bank Leumi Trust Co. of N.Y. v Rattet & Liebman, 182 AD2d 541 [1992]). Furthermore, the purported defense based on discussions between the parties which occurred after the note and guaranties were executed was insufficient to raise a triable issue of fact with respect to the defendants’ liability under those documents (see Dichter v Viking Off. Prods., 119 AD2d 794, 795 [1986]; see also Neuhaus v McGovern, 293 AD2d 727, 728 [2002]; Grasso v Shutts Agency, 132 AD2d 768, 768 [1987]). Since the defendants have failed to establish a genuine defense to the note, it is unnecessary to determine whether the plaintiff is a holder in due course, rather than merely a holder (see Constructamax, Inc. v CBA Assoc., 294 AD2d at 460; DH Cattle Holdings Co. v Reno, 196 AD2d 670, 673 [1993]; see also First Intl. Bank of Israel v Blankstein & Son, 59 NY2d 436, 444 [1983]).
Accordingly, the Supreme Court should have granted the
Finally, the plaintiff failed to demonstrate that it was entitled to reimbursement for the real estate taxes it allegedly paid, as there were no provisions in the note or the agreement relating to the payment of such taxes. Accordingly, that branch of the plaintiffs motion which sought reimbursement of sums for real estate taxes paid was properly denied (see Fine v Di Stanti, 79 AD2d 673 [1980]). Dillon, J.E, Eng, Sgroi and Miller, JJ., concur. [Prior Case History: 2010 NY Slip Op 31424(U).]