Opinion
06-28-2016
David BLUMENSTEIN, Plaintiff–Appellant, v. WASPIT GROUP, INC., et al., Defendants–Respondents.
Blackstone Law Group LLP, New York (Alexander J. Urbelis of counsel), for appellant. Mintz & Fraade, P.C., New York (Alan P. Fraade of counsel), for respondents.
Blackstone Law Group LLP, New York (Alexander J. Urbelis of counsel), for appellant.
Mintz & Fraade, P.C., New York (Alan P. Fraade of counsel), for respondents.
SWEENY, J.P., ACOSTA, FEINMAN, KAPNICK, WEBBER, JJ.
Order, Supreme Court, New York County (Donna M. Mills, J.), entered October 20, 2014, which granted defendants' motion for reargument, and, upon reargument, vacated so much of a prior order as granted plaintiff's motion for summary judgment in lieu of complaint (CPLR 3213 ), and denied plaintiff's motion, unanimously reversed, on the law, with costs, and plaintiff's motion granted. The Clerk is directed to enter judgment accordingly.
Plaintiff established his entitlement to summary judgment in lieu of complaint by submitting a promissory note executed by defendants and proof of defendants' failure to make payments according to its terms (see Zyskind v. FaceCake Mktg. Tech., Inc., 101 A.D.3d 550, 551, 956 N.Y.S.2d 45 [1st Dept.2012] ).
In opposition, defendants failed to raise an issue of fact as to a bona fide defense (see id. ). Their argument that the note was usurious improperly relies on facts extrinsic to the note (see Alard, L.L.C. v. Weiss, 1 A.D.3d 131, 767 N.Y.S.2d 11 [1st Dept.2003] ; see generally Interman Indus. Prods. v. R.S.M. Electron Power, 37 N.Y.2d 151, 155, 371 N.Y.S.2d 675, 332 N.E.2d 859 [1975] ). Their argument that the note was not an instrument for the payment of money only is defeated by their failure to establish that the note and the deed of settlement executed simultaneously with it were inextricably intertwined (compare Technical Tape, Inc. v. Spray Tuck, 131 A.D.2d 404, 406, 517 N.Y.S.2d 147 [1st Dept.1987] [“The note is expressly subject to the terms and conditions of the agreement of sale ... [which] outlines a complicated formula for the finalization of the price, and requires the production of documents and records in relation thereto”] ). While the note states that it was executed “pursuant to” and “in consideration of” the deed, it does not state that it was “subject to the terms and conditions of” the deed (see id. ). Nothing in the deed affects the value of the principal due under the note or otherwise alters defendants' obligations to pay under the note (see e.g. Boland v. Indah Kiat Fin. (IV) Mauritius, 291 A.D.2d 342, 739 N.Y.S.2d 122 [1st Dept.2002] ).