MOEZINIA v. BAROUKHIAN (1998)

In an action to recover on a promissory note, brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendant appeals from a judgment of the Supreme Court, Nassau County (Winick, J.), entered November 27, 1996, which, upon an order granting the motion, is in favor of the plaintiff and against him in the principal sum of $73,000.

ORDERED that the judgment is affirmed, with costs.

 The plaintiff sustained his initial burden of demonstrating his entitlement to judgment as a matter of law by submitting evidence that the defendant executed the $73,000 promissory note and failed to make payment in accordance with its terms (see, DeVito v. Benjamin, 243 A.D.2d 600, 663 N.Y.S.2d 266;  Colonial Commercial Corp. v. Breskel Assocs., 238 A.D.2d 539, 657 N.Y.S.2d 940;  Bank of N.Y. v. Sterlington Common Assocs., 235 A.D.2d 448, 652 N.Y.S.2d 323).   The burden thus shifted to the defendant to come forward with evidentiary facts demonstrating the existence of a material issue of fact which would defeat summary judgment (see, Colonial Commercial Corp. v. Breskel Assocs., supra;  Falco v. Thorne, 225 A.D.2d 582, 639 N.Y.S.2d 106).   Here, the defendant admitted that his signature on the second page of the promissory note was genuine, but claimed to “believe” that the first page of the note had been “substituted from another document” that he previously executed.   However, the defendant failed to identify or produce any other promissory note from which his signature could have been taken.   In view of the defendant's failure to offer evidentiary proof to substantiate his claim that the subject promissory note was not genuine, the Supreme Court properly granted the plaintiff's motion for summary judgment (see, Vamattam v. Thomas, 205 A.D.2d 615, 613 N.Y.S.2d 220;  Joint Venture Asset Acquisition v. Tufano, 203 A.D.2d 102, 610 N.Y.S.2d 37;  Marine Midland Bank, N.A. v. Mattioli, 180 A.D.2d 406, 579 N.Y.S.2d 78).

 The defendant's remaining arguments, which were not raised in Supreme Court in opposition to the motion for summary judgment and which rely on facts that are dehors the record, may not be raised for the first time on appeal (see, Desiderio v. Rubin, 234 A.D.2d 581, 652 N.Y.S.2d 68;  Aguirre v. City of New York, 214 A.D.2d 692, 625 N.Y.S.2d 597).

MEMORANDUM BY THE COURT.