BRIEN v. BRIEN (1999)

In an action to recover on a promissory note brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Dunn, J.), entered November 14, 1997, which denied the motion.

ORDERED that the order is reversed, on the law, with costs, and the motion for summary judgment in lieu of complaint is granted.

 The plaintiff made a prima facie showing that she was entitled to summary judgment by submitting proof of the promissory note and the defendants' failure to make payments on the note according to its terms (see, Bennell Hanover Assocs. v. Neilson, 215 A.D.2d 710, 711, 627 N.Y.S.2d 439;  Vernon v. Winikoff, 182 A.D.2d 753, 582 N.Y.S.2d 758).   In order to avoid enforcement of the note, the defendants were required to establish, by admissible evidence, that a triable issue of fact existed (see, Bennell Hanover Assocs. v Neilson, supra ).   The allegation of the defendant Chong S. O'Brien that she was fraudulently induced to sign the note because she was told that it was for “tax purposes”, without more, is insufficient to raise a triable issue of fact (see, Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255, 259, 309 N.Y.S.2d 341, 257 N.E.2d 890;  Vernon v. Winikoff, supra ).

MEMORANDUM BY THE COURT.