LORENZ DIVERSIFIED CORP v. FALK (2007)

In an action to recover on a promissory note, the defendants appeal from a judgment of the Supreme Court, Putnam County (O'Rourke, J.), dated June 22, 2006, which, upon a decision of the same court dated May 18, 2006, made after a nonjury trial, is in favor of the plaintiff and against them in the principal sum of $35,268.56.

ORDERED that the judgement is affirmed, with costs.

 The Supreme Court properly awarded judgment to the plaintiff.   The plaintiff established a prima facie case by submitting proof of the existence of a promissory note and the defendants' default (see Marinis v. Scherr, 306 A.D.2d 448, 761 N.Y.S.2d 305;  Two Lincoln Advisory Servs. v. Shields, 293 A.D.2d 740, 741, 741 N.Y.S.2d 432;  Central Islip Co-op. G.L.F. Serv. v. Tsantes, 17 A.D.2d 852, 233 N.Y.S.2d 631).   The defendants failed to controvert the evidence presented by the plaintiff (see Anand v. Wilson, 32 A.D.3d 808, 821 N.Y.S.2d 130;  Federal Fin. Co. v. Rattoballi, 245 A.D.2d 335, 666 N.Y.S.2d 25) or establish the affirmative defense of full payment (see CPLR 3018[b];  Two Lincoln Advisory Servs. v. Shields, 293 A.D.2d at 741, 741 N.Y.S.2d 432).

 Contrary to the defendants' contention, even if the nonparty Benito Rish were under the plaintiff's control (cf. Hershkowitz v. Saint Michel, 143 A.D.2d 809, 810, 533 N.Y.S.2d 344), the Supreme Court's alleged refusal to draw an adverse inference from the plaintiff's failure to call him as a witness did not deprive the defendants of a fair trial. Rish's testimony would not have diminished the admitted genuineness of the promissory note, and would not have been probative of whether the note was satisfied through the defendants' alleged cash payments to the nonparty Felix Shiffman.

Moreover, and contrary to the defendants' further contention, since there was no evidence that Shiffman was acting as the plaintiff's agent, the Supreme Court properly excluded the hearsay testimony of the defendant Jeffrey Falk (see Sujak v. Buono, 238 A.D.2d 405, 406, 656 N.Y.S.2d 339).

 Similarly, the Supreme Court properly excluded the plaintiff's income tax returns from evidence, as the defendants failed to carry their burden of showing that “the relevant information possibly contained therein cannot be obtained from any alternative source, such as other financial or business records” (Consentino v. Schwartz, 155 A.D.2d 640, 641, 548 N.Y.S.2d 232;  see Panasuk v. Viola Park Realty, LLC, 41 A.D.3d 804, 839 N.Y.S.2d 520;  Rubinfeld v. Zwerling, 261 A.D.2d 382, 687 N.Y.S.2d 293).

The defendants' remaining contentions are without merit.