Opinion
January 26, 1998
Appeal from the Supreme Court, Kings County (Kramer, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and, upon renewal, the plaintiff's motion for summary judgment in lieu of complaint is granted.
Since a party is free to withdraw from a common-law arbitration at any time and proceed by court action ( see, Finucane Co. v. Board of Educ., 190 N.Y. 76; McLaughlin, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C7501:2, at 253), the plaintiff's motion for summary judgment in lieu of complaint on a promissory note was properly before the Supreme Court for disposition on the merits.
Upon our review of the plaintiff's motion papers, we find that the plaintiff is entitled to judgment on the note (CPLR 3213). There is no dispute that the promissory note was executed by the defendants; that it was to be paid back within six months; and that despite the plaintiff's demand, the defendants have never made payment and are in default under the note. Since there are no questions of fact presented with respect to the defendants' default, the plaintiff is entitled to summary judgment in lieu of complaint ( see, Silver v. Jimsam Sales Corp., 190 A.D.2d 787; Sexton v. Fishman, 184 A.D.2d 630).
Bracken, J.P., Thompson, Krausman and Luciano, JJ., concur.