Opinion
March 4, 1991
Appeal from the Supreme Court, Nassau County (Roncallo, J.).
Ordered that the order dated June 27, 1989, is reversed, on the law, the defendant's motion to vacate the judgment is denied, and that judgment is reinstated; and it is further,
Ordered that the order dated August 18, 1989, is reversed insofar as appealed from, on the law, and I. Leonard Feigenbaum and Feigenbaum Arthur are permitted to continue their representation of the plaintiff; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
In support of her motion for summary judgment in lieu of complaint (see, CPLR 3213), the plaintiff established that a check in the amount of $11,000 had been issued and tendered by the defendant for good and valuable consideration on January 12, 1989. The check, after being duly presented for payment, was dishonored and returned by the defendant's bank. Although the defendant alleged that there were valid affirmative defenses, including fraud in the inducement, those allegations amounted to no more than unsubstantiated, conclusory assertions which were not sufficient to defeat the motion (see, Fidelity N Y v Hanover Cos., 148 A.D.2d 577; Ihmels v Kahn, 126 A.D.2d 701, 702). Moreover, the defendant's assertions were, for the most part, precluded by the terms of the underlying contract (see, Ihmels v Kahn, supra).
With respect to the defendant's claim that the law firm representing the plaintiff should be disqualified because I. Leonard Feigenbaum is a necessary witness who ought to be called to testify, the facts asserted in the defendant's papers fail to justify disqualification of the entire firm under the principles set forth in S S Hotel Ventures Ltd. Partnership v 777 S.H. Corp. ( 69 N.Y.2d 437; see, U.S. Risk Managers v Gershuny, 141 A.D.2d 389, 390). In any event, the defendant failed to establish that I. Leonard Feigenbaun was a necessary witness. Kunzeman, J.P., Kooper, Harwood and O'Brien, JJ., concur.