BELLA FOOD CORP v. LUIGI ITALIAN DELI INC (1997)

In an action to recover on a promissory note 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 (McCarty, J.), dated October 11, 1996, which, upon a decision of the same court dated October 1, 1996, is in favor of the plaintiff and against them in the principal sum of $185,767.46.   The defendants' notice of appeal from the decision is deemed a premature notice of appeal from the judgment (see, CPLR 5520[c] ).

ORDERED that the judgment is affirmed, with costs.

The plaintiff brought this action to recover on a promissory note against the maker of the note, the defendant Luigi's Italian Deli, Inc., and the guarantors, the defendants Nick Esposito and Richard Pagnotta.   The promissory note was given as consideration for the sale of a delicatessen business by the plaintiff to Esposito and Pagnotta.

The plaintiff established a prima facie case by submitting proof of the note and the defendants' default (see, Colonial Commercial Corp. v. Breskel Assocs., 238 A.D.2d 539, 657 N.Y.S.2d 940;  J.A. Grammas Assocs., Architectural and Eng'g Servs. v. Ehrlich, 229 A.D.2d 517, 645 N.Y.S.2d 543;  Bennell Hanover Assocs. v. Neilson, 215 A.D.2d 710, 627 N.Y.S.2d 439).   In order to preclude the plaintiff from enforcing the terms of the note the burden shifted to the defendants to establish by admissible evidence the existence of a triable issue of fact or a meritorious defense (see, Colonial Commercial Corp. v. Breskel Assocs., supra;  J.A. Grammas Assocs., Architectural and Eng'g Servs. v. Ehrlich, supra;  Bennell Hanover Assocs. v. Neilson, supra).

 The defendants' allegation that there were “staged sales” engineered to misrepresent the level of the delicatessen's business is based on the alleged statements of unnamed witnesses “who are willing to testify at the proper time” and is of no probative value (see, Bortle v. Pron Co., 203 A.D.2d 779, 610 N.Y.S.2d 668).   Such unsubstantiated allegations of fraud are not sufficient to defeat the motion for summary judgment (see, Bennell Hanover Assocs. v. Neilson, supra;  Spielman v. Acme Natl. Sales Co., 159 A.D.2d 918, 553 N.Y.S.2d 532;  cf., Silber v. Muschel, 190 A.D.2d 727, 593 N.Y.S.2d 306).

 Moreover, the defendants cannot rely upon parol evidence to establish their claim that there was fraud in the inducement by way of misrepresentations as to the gross or net receipts of the business, inasmuch as they have expressly disclaimed reliance on any such representations (see, Nancy Neale Enters. v. Eventful Enters., 238 A.D.2d 322, 656 N.Y.S.2d 61;  Germano v. Friedman, 221 A.D.2d 501, 633 N.Y.S.2d 824;  Taormina v. Hibsher, 215 A.D.2d 549, 626 N.Y.S.2d 559;  Getty Petroleum Corp. v. DeIorio, 194 A.D.2d 762, 599 N.Y.S.2d 829).

Nor is an issue of fact raised by the alleged statements of the broker, which constituted mere expressions of opinion of present or future expectations (see, Crossland Sav. v. SOI Dev. Corp., 166 A.D.2d 495, 560 N.Y.S.2d 782;  Carvel Corp. v. Nicolini, 144 A.D.2d 611, 535 N.Y.S.2d 379), or the alleged wrongdoing attributed to the broker (see, Weissman v. Mertz, 128 A.D.2d 609, 512 N.Y.S.2d 865).

The defendants' remaining contention is without merit.

MEMORANDUM BY THE COURT.