Opinion
2017–09507 Index No. 610948/16
05-29-2019
PEOPLE'S UNITED BANK, NATIONAL ASSOCIATION, etc., Appellant, v. MSI ENTERTAINMENT, LLC, et al., Respondents.
Jaspan Schlesinger LLP, Garden City, N.Y. (Antonia M. Donohue and Christopher Palmieri of counsel), for appellant. Chesney & Nicholas, LLP, Syosset, N.Y. (Stephen V. Morello of counsel), for respondents.
Jaspan Schlesinger LLP, Garden City, N.Y. (Antonia M. Donohue and Christopher Palmieri of counsel), for appellant.
Chesney & Nicholas, LLP, Syosset, N.Y. (Stephen V. Morello of counsel), for respondents.
CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, HECTOR D. LASALLE, LINDA CHRISTOPHER, JJ.
DECISION & ORDERIn an action to recover on a promissory note, the plaintiff appeals from an order of the Supreme Court, Suffolk County (James Hudson, J.), dated July 6, 2017. The order denied the plaintiff's motion for summary judgment on the complaint.
ORDERED that the order is reversed, on the law, with costs, the plaintiff's motion for summary judgment on the complaint is granted, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing to determine the amount owed on the promissory note.
In this action, the plaintiff seeks to recover money pursuant to a promissory note executed in its favor by the defendant MSI Entertainment, LLC (hereinafter MSI). "To establish prima facie entitlement to judgment as a matter of law with respect to a promissory note, a plaintiff must show the existence of a promissory note executed by the defendant containing an unequivocal and unconditional obligation to repay and the failure of the defendant to pay in accordance with the note's terms" ( Jin Sheng He v. Sing Huei Chang, 83 A.D.3d 788, 789, 921 N.Y.S.2d 128 ). Here, the plaintiff established its prima facie entitlement to judgment as a matter of law by submitting the promissory note and the affidavit of its vice president asserting that MSI failed to repay the loan in accordance with the terms of the note (see Lugli v. Johnston, 78 A.D.3d 1133, 1135, 912 N.Y.S.2d 108 ).
In opposition, the defendants failed to raise a triable issue of fact with respect to a bona fide defense. Contrary to the defendants' contention, the promissory note was not unconscionable (see Emigrant Mtge. Co., Inc. v. Fitzpatrick, 95 A.D.3d 1169, 1171, 945 N.Y.S.2d 697 ). Nor did the plaintiff's continued acceptance of interest payments after its demand for repayment affect the plaintiff's entitlement to summary judgment (see Millers Wood Dev. Corp. v. HSBC Bank USA, 300 A.D.2d 1015, 1016, 755 N.Y.S.2d 135 ; Basciano v. Toyet Realty Corp., 167 A.D.2d 203, 204–205, 561 N.Y.S.2d 252 ).
Accordingly, the Supreme Court should have granted the plaintiff's motion for summary judgment on the complaint.
Although the plaintiff is entitled to summary judgment on the complaint, the amount that is still owed under the promissory note is not capable of being ascertained on this record. Therefore, a hearing is needed to determine the amount owed on the note.
CHAMBERS, J.P., MILLER, LASALLE and CHRISTOPHER, JJ., concur.