DON HO CHANG v. WRIGHT (2018)

Plaintiff, Don Ho Chang commenced this action to recover on a promissory note, against the defendant, Sasha Iyana Wright, by motion for summary judgment in lieu of complaint, pursuant to CPLR § 3213.

It is undisputed that on or about May 3, 2011, the Parties entered into a lease agreement for the premises known as 167 East 3rd Street, Apt. A, Mount Vernon, New York for a period of three and a half (3.5) years commencing on May 15, 2011, and terminating on December 31, 2014 (See Exhibit 1). Thereafter, the defendant breached the lease agreement by failing to remit regular payments pursuant to the terms of the said lease totaling $11,610.00. Defendant, on March 29, 2013, signed a promissory note agreeing to pay that amount of $11,610.00 in monthly payments for $200.00 starting April 1, 2013, and to pay the remaining balance before the end of December 28, 2013 (see Exhibit 2). Thereafter, defendant did not make any payments pursuant to the terms of the agreement.

Defendant opposes the motion, raising the defense of duress. Defendant in her written answer asserts that the promissory note was written and signed under great duress, and a threat of litigation with severe penalties. She further contends that before signing the promissory note she had agreed with the plaintiff that she would vacate the premises without consequences or any further payments from her.

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 (see Gullery v Imburgio, 74 AD3d 1022 [2010]; Superior Fid. Assur., Ltd. v Schwartz, 69 AD3d 924 [2010]; Verela v Citrus Lake Dev., Inc., 53 AD3d 574, 575 [2008]; Levien v Allen, 52 AD3d 578 [2008]; Anand v Wilson, 32 AD3d 808 [2006] ).

Once the plaintiff submits evidence establishing these two elements, the burden then shifts to the defendant to submit evidence establishing the existence of a triable issue with respect to a bona fide defense (see Pennsylvania Higher Educ. Assistance Agency v Musheyev, 68 AD3d 736 [2009]; Quest Commercial, LLC v Rovner, 35 AD3d 576 [2006]; Famolaro v Crest Offset, Inc., 24 AD3d 604 [2005]; Bank of NY v Vega Tech. USA, LLC, 18 AD3d 678 [2005] ).

Here, the plaintiff met his prima facie burden of establishing his entitlement to judgment as a matter of law by submitting the promissory note signed by the defendant, which provided that the defendant was to pay the sum of $11,610.00 to the plaintiff in monthly installments and a lump sum payment by a date certain, coupled with the plaintiff's affidavit asserting that the defendant failed to repay the monthly installments and lump sum payment in accordance with the terms of the note (see Verela v Citrus Lake Dev., Inc., 53 AD3d 574 [2008]; North Fork Bank v ABC Merchant Servs., Inc., 49 AD3d 701 [2008]; Suffolk County Natl. Bank v Columbia Telecom. Group, Inc., 38 AD3d 644 [2007]; Quest Commercial, LLC v Rovner, 35 AD3d 576 [2006] ).

In opposition, the defendant's unsupported, conclusory allegations with respect to the defense of duress is insufficient to defeat the plaintiff's entitlement to summary judgment.

Accordingly, since the Defendant failed to demonstrate, by admissible evidence, the existence of a triable issue of fact with respect to a bona fide defense, the plaintiff's motion for summary judgment in lieu of complaint is granted. As such, based upon the foregoing, plaintiff is entitled to a judgment against the defendant in the sum of $11,610.00, with interest at the statutory rate from April 1, 2013, together with the costs and disbursements of this action.

This constitutes the Decision and Order of this Court.

The Court considered the following papers on this motion:

Notice of Motion for Summary Judgment In Lieu of Complaint, dated November 13, 2017, Affidavit in Support, Exhibits 1–4; Defendant's Written Answer, dated April 11, 2018.

Adrian N. Armstrong, J.