DiMARCO v. BOMBARD CAR CO INC (2004)

Supreme Court properly granted the motion of Bombard Car Co., Inc. (defendant) for summary judgment on its counterclaim to recover the amount due on a promissory note executed by plaintiff, along with interest and “the reasonable costs of collection, including reasonable attorneys' fees in the amount of $1,017.50.”   Defendant met its initial burden by submitting proof of the note and plaintiff's default, and plaintiff failed to raise a triable issue of fact with respect to his defense of lack of consideration (see A. Bella Food Corp. v. Luigi's Italian Deli, 243 A.D.2d 592, 663 N.Y.S.2d 268;  Falco v. Thorne, 225 A.D.2d 582, 583, 639 N.Y.S.2d 106).   The note, which is “clear, complete and unambiguous” on its face (Fleet Bank of N.Y. v. Rozanski, 216 A.D.2d 938, 938, 629 N.Y.S.2d 560, lv. denied 87 N.Y.2d 804, 640 N.Y.S.2d 877, 663 N.E.2d 919), recites that it was executed for value received (see Friends Lbr. v. Cornell Dev. Corp., 243 A.D.2d 886, 886-887, 663 N.Y.S.2d 327;  cf. Mastro v. Carroll, 296 A.D.2d 802, 802-803, 745 N.Y.S.2d 619), and the record establishes that plaintiff received consideration, i.e., a 50% share in one company and the option to purchase a 50% share of another company, both of which were formed in connection with the acquisition of an automobile dealership (see Low v. Ngan Fung Chum, 261 A.D.2d 337, 692 N.Y.S.2d 310).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.

MEMORANDUM: