LANDA v. FRIEDMAN (2023)

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered August 8, 2022, which denied plaintiff's CPLR 3213 motion for summary judgment in lieu of complaint, unanimously affirmed, with costs.

Supreme Court correctly denied plaintiff's motion.  Plaintiff made a prima facie showing by producing the promissory notes that defendant signed and demonstrating that defendant failed to pay (see e.g. Wachovia Bank, N.A. v. Silverman, 84 A.D.3d 611, 612, 923 N.Y.S.2d 496 [1st Dept. 2011]), but defendant nonetheless raised a triable issue of fact as to whether the notes were intended to be repaid (see e.g. Greenleaf v. Lachman, 216 A.D.2d 65, 66, 628 N.Y.S.2d 268 [1st Dept. 1995]).  Defendant has submitted sufficient parol evidence which this Court may consider, including via his affidavit, to raise a triable issue of fact as to whether the notes, “although purporting to be [ ] contract[s], [are], in fact, no contract[s] at all” (Polygram Holding, Inc. v. Cafaro, 42 A.D.3d 339, 340, 839 N.Y.S.2d 493 [1st Dept. 2007]).

Defendant's “allegations cannot be dismissed as conclusory or speculative” (Torelli v. Esposito, 63 N.Y.2d 903, 904, 483 N.Y.S.2d 204, 472 N.E.2d 1032 [1984]).  Instead, defendant has provided sufficient detail to raise a triable issue of fact as to whether the notes were not meant to be repaid, and instead, the funds transferred in connection with the notes were intended as a gift for the purchase of an apartment, with the notes serving to take advantage of annual Internal Revenue Service gift limits (see e.g. Greenleaf at 66, 628 N.Y.S.2d 268).

We have considered plaintiff's remaining contentions and find them unavailing.