KOWALSKI ENTERPRISES INC v. SEM INTERNATIONAL RK (1998)

In an action, inter alia, to recover on a promissory note and a guarantee, the plaintiffs appeal from an order of the Supreme Court, Kings County (Held, J.), entered April 28, 1997, which denied their motion for partial summary judgment on the first cause of action for nonpayment of the promissory note and guarantee.

ORDERED that the order is reversed, on the law, with costs, the plaintiffs' motion is granted, and the matter is remitted for a determination of the amount due and owing under the promissory note and guarantee.

Under the circumstances of this case, the plaintiffs proved their entitlement to judgment as a matter of law by submitting, in support of their motion, proof of the promissory note and guarantee and of the defendants' failure to make the payments provided by the terms of the note and guarantee (see, North Fork Bank v. Hamptons Mist Mgt. Corp., 225 A.D.2d 595, 596, 639 N.Y.S.2d 452;  Governor & Co. of Bank of Ireland v. Dromoland Castle, 212 A.D.2d 759, 624 N.Y.S.2d 855;  Gateway State Bank v. Shangri-La Private Club for Women, 113 A.D.2d 791, 493 N.Y.S.2d 226, affd. 67 N.Y.2d 627, 499 N.Y.S.2d 679, 490 N.E.2d 546).   Accordingly, it was incumbent upon the defendants to come forward with proof in admissible form of the existence of triable issues of fact (see, North Fork Bank v. Hamptons Mist Mgt. Corp., supra;  Gateway State Bank v. Shangri-La Private Club for Women, supra).   However, the defendants' unsubstantiated and conclusory allegations failed to raise triable issues of fact, and, therefore, the court should have granted the plaintiffs' motion (see, North Fork Bank v. Hamptons Mist Mgt. Corp., supra;   Elmsford-Interstate Building Material Corp. v. Elm Ridge Mgt., Inc., 243 A.D.2d 675, 664 N.Y.S.2d 576;  Colonial Commercial Corp. v. Breskel Assocs., 238 A.D.2d 539, 657 N.Y.S.2d 940;  J.A. Grammas Assocs., Architectural & Eng'g Servs. v. Erhlich, 229 A.D.2d 517, 645 N.Y.S.2d 543).

MEMORANDUM BY THE COURT.