| FX Funding LLC v Fox RX Inc. |
| 2022 NY Slip Op 02871 |
| Decided on April 28, 2022 |
| Appellate Division, First 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 and Entered: April 28, 2022
Before: Acosta, P.J., Manzanet-Daniels, Mazzarelli, Singh, González, JJ.
Index No. 656779/16 Appeal No. 15824 Case No. 2021-02732
v
Fox RX Inc., et al., Defendants-Respondents.
Law Office of Sheldon H. Gopstein, New York (Sheldon H. Gopstein of counsel), for appellant.
Harriette N. Boxer, Bay Shore, for respondents.
Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered on or about June 28, 2021, which denied plaintiff's motion for partial summary judgment, unanimously reversed, on the law, without costs, and the motion granted.
Plaintiff's prior summary judgment motion concerned two promissory notes that were provided in connection with three loans by plaintiff to defendant Fox between March and October 2014. The third note, which was the subject of the instant motion, had not matured at the time the prior motion was filed. Thus, nonpayment of that note was not an available ground for summary judgment at that time, and the instant motion is therefore not an improper successive summary judgment motion (see Amill v Lawrence Ruben Co., Inc., 117 AD3d 433, 433-434 [1st Dept 2014]). Furthermore, plaintiff was under no obligation to wait until the third note matured to seek relief on notes one and two, which had.
In any event, defendants provided no defense to the nonpayment claim with respect to the third note. Courts should be loath to sustain a meritless action or defense upon purely procedural grounds (see Freeze Right Refrig. & A.C. Servs. v City of New York, 101 AD2d 175, 181 [1st Dept 1984]). Requiring a trial with respect to this claim is a waste of judicial resources where no defense was presented (see Elihu v Nicoleau, 173 AD3d 578 [1st Dept 2019]).
We have considered defendants' remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: April 28, 2022