DOMANSKY v. BERKOVITCH (1999)

Order, Supreme Court, New York County (Ira Gammerman, J.), entered April 10, 1997, which, inter alia, granted plaintiff's motion for summary judgment in lieu of complaint, and order, same court and Justice, entered November 18, 1997, which denied defendant's cross motion to vacate the judgment entered in plaintiff's favor, unanimously affirmed, without costs.

In view of plaintiff's prima facie showing that he was entitled to recover upon the promissory note executed by defendant and defendant's failure to controvert that showing by demonstrating the existence of triable issues of fact, the motion court's grant of plaintiff's motion for summary judgment in lieu of complaint was proper (see, Seaman-Andwall Corp. v. Wright Mach. Corp., 31 A.D.2d 136, 137, 295 N.Y.S.2d 752, affd. 29 N.Y.2d 617, 324 N.Y.S.2d 410, 273 N.E.2d 138).   Defendant's claim that the note was made merely as a guarantee for repayment of plaintiff's loan to a third party was insufficient to defeat the motion for summary adjudication since the claim was contradicted by the note's clear terms, which terms were not subject to contradiction by defendant's proposed parol evidence (Manufacturers Hanover Trust Co. v. Margolis, 115 A.D.2d 406, 407, 496 N.Y.S.2d 36).   Also proper was the motion court's denial of defendant's motion for vacatur, since defendant failed to adduce any evidence of the fraud alleged as the predicate for the requested relief (see, CPLR 5015[a][3] ).

MEMORANDUM DECISION.