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• Title: Robert Mlcoch v. Barry Smith
• Author : Supreme Court of New York
• Release Date : January 06, 1991
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 65 KB

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DECISION & ORDER Contrary to the defendants' contentions, the Supreme Court properly concluded that the plaintiff was
entitled to summary judgment in lieu of complaint (see, CPLR 3213; Interman Ind. Prods. v R.S.M. Electron Power, 37 N.Y.2d
151). The plaintiff established his prima facie entitlement to judgment as a matter of law by producing the promissory notes
executed by the defendants and by establishing the defendants' default thereon (see, Gittleson v Dempster, 148 A.D.2d 578,
579). It was then "incumbent upon the defendants to demonstrate, by admissible evidence, the existence of a genuine triable
issue of fact" (see, Gittleson v Dempster, supra, at 579; Crumbliss v Swerdlow, 158 A.D.2d 502, 503). Significantly, the general
rule is that the breach of a related contract cannot defeat a motion for summary judgment on an instrument for money only
unless it can be shown that the contract and the instrument are "intertwined" and that the defenses alleged to exist create
material issues of triable fact (see, e.g., Inpar Bldg. Corp. v Veoukas, 143 A.D.2d 810, 811; Regal Limousine Inc. v Allison
Limousine Inc., 136 A.D.2d 534). The defendants have failed to meet this burden. After making payment on 28 of the 60 promissory notes in question over a period of almost 2 1/2 years, the defendants opposed
the plaintiff's motion by advancing, for the first time, a series of vague contentions that the plaintiff had allegedly breached
the underlying contract for which the notes were given. It has been held, however, that "a shadowy semblance of an issue or
bald conclusory assertions, even if believable, are not enough to defeat a motion for summary judgment" (see, Morowitz v
Naughton, 150 A.D.2d 536, 537; see also, Capelin Assoc. v Globe Mfg. Corp., 34 N.Y.2d 338, 342; American Sav. Bank v Imperato,
159 A.D.2d 444; Assing v United Rubber Supply Co., 126 A.D.2d 590; Kaye v Keret, 89 A.D.2d 885, 886). Under the circumstances,
the defendants' conclusory and belated allegations of wrongdoing are insufficient to establish the existence of genuine, triable
issues of fact.

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