VERELA v. CITRUS LAKE DEVELOPMENT INC (2008)

In an action to recover on a promissory note and guaranty brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendants appeal from a judgment of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered May 15, 2007, which, upon an order of the same court dated April 4, 2007, granting the plaintiff's motion for summary judgment in lieu of complaint, is in favor of the plaintiff and against them in the principal sum of $250,000.

ORDERED that the judgment is affirmed, with costs.

 The plaintiff made a prima facie showing of entitlement to judgment as a matter of law by establishing the existence of a note and guaranty and the defendants' failure to make payments according to their terms (see Famolaro v. Crest Offset, Inc., 24 A.D.3d 604, 604-605, 807 N.Y.S.2d 387;  Hestnar v. Schetter, 284 A.D.2d 499, 500, 728 N.Y.S.2d 479;  Kowalski Enters. v. Sem Intl., 250 A.D.2d 648, 672 N.Y.S.2d 427;  Haselnuss v. Delta Testing Labs., 249 A.D.2d 509, 671 N.Y.S.2d 361).  “The burden then shifted to the defendant[s] to establish by admissible evidence the existence of a triable issue of fact with respect to a bona fide defense” (Quest Commercial, LLC v. Rovner, 35 A.D.3d 576, 825 N.Y.S.2d 766;  see Kowalski Enters. v. Sem Intl., 250 A.D.2d at 648, 672 N.Y.S.2d 427).   The defendants' conclusory and unsupported assertion that no consideration was given at the time the note and guaranty were executed was insufficient to defeat the plaintiff's motion (see Hestnar v. Schetter, 284 A.D.2d at 500, 728 N.Y.S.2d 479;  MDJR Enters. v. LaTorre, 268 A.D.2d 509, 510, 703 N.Y.S.2d 54;  J.A. Grammas Assoc., Architectural & Eng'g Servs. v. Ehrlich, 229 A.D.2d 517, 645 N.Y.S.2d 543).   The defendants' further assertion that they believed the note and guaranty did not constitute a loan but instead memorialized an agreement between the parties regarding an alleged land development project in Florida was also insufficient to raise a triable issue of fact.   The assertion was vague, unsubstantiated, and conclusory and, indeed, belied by the fact that the defendants made the interest-only payments provided for in the note for almost one year prior to their default thereon, thus demonstrating their intent that the note was valid and effective (see Thomson v. Rubenstein, 31 A.D.3d 434, 436, 818 N.Y.S.2d 516).

Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment in lieu of complaint and issued judgment thereon.