Opinion
10724 Index 603000/05
01-07-2020
Said HAKIM, etc., Plaintiff–Respondent, v. Kamran HAKIM, Defendant–Appellant, Ranell Freeze Company, et al., Defendants.
Leo Fox, New York, for appellant. Helene W. Hartig, New York, for respondent.
Leo Fox, New York, for appellant.
Helene W. Hartig, New York, for respondent.
Acosta, P.J., Manzanet–Daniels, Kapnick, Oing, JJ.
Order, Supreme Court, New York County (Eileen Bransten, J.), entered August 21, 2017, which, upon reargument, adhered to its prior decision, denying defendant Kamran Hakim's (defendant) motion for summary judgment on his counterclaim to enforce a matured promissory note executed by plaintiff, unanimously affirmed, with costs. On reargument, defendant failed to establish prima facie entitlement to summary judgment, as he failed to submit a supporting affidavit, founded upon personal knowledge, that set forth the note's underlying terms, including the nature of the alleged value exchanged as consideration for plaintiff's obligation under the note (see generally Banco Popular N. Am. v. Victory Taxi Mgt., 1 N.Y.3d 381, 774 N.Y.S.2d 480, 806 N.E.2d 488 [2004] ; Mann v. Green, 159 A.D.3d 545, 73 N.Y.S.3d 42 [1st Dept. 2018] ; Gliklad v. Cherney, 132 A.D.3d 601, 20 N.Y.S.3d 1 [1st Dept. 2015], lv dismissed 28 N.Y.3d 952, 38 N.Y.S.3d 521, 60 N.E.3d 416 [2016] ). Assuming arguendo that defendant did establish prima facie entitlement to summary judgment on his counterclaim to enforce the note, plaintiff's affidavit in opposition, along with his expert accountant's affidavit, raised factual issues as to the viability of plaintiff's defenses to the note, including whether plaintiff had ever received loan proceeds which defendant claimed was the consideration that supported plaintiff's obligation on the note.
We have considered defendant's remaining arguments and find them unavailing.