LEVIEN v. ALLEN (2008)

In an action to recover on three promissory notes, the defendants appeal from a judgment of the Supreme Court, Nassau County (Bucaria, J.), entered November 9, 2006, which, upon a decision of the same court dated October 2, 2006, made after a nonjury trial, is in favor of the plaintiff and against them in the principal sum of $426,865.14.

ORDERED that the judgment 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 the three promissory notes and the defendants' default on each note (see Lorenz Diversified Corp. v. Falk, 44 A.D.3d 910, 844 N.Y.S.2d 370;  Marinis v. Scherr, 306 A.D.2d 448, 761 N.Y.S.2d 305).   The defendants failed to controvert the evidence presented by the plaintiff (see Lorenz Diversified Corp. v. Falk, 44 A.D.3d 910, 844 N.Y.S.2d 370).   Furthermore, the defendants failed to establish the affirmative defenses of lack of consideration (see Anand v. Wilson, 32 A.D.3d 808, 809, 821 N.Y.S.2d 130;  see generally Mencher v. Weiss, 306 N.Y. 1, 8, 114 N.E.2d 177) or usury (cf. Hicki v. Choice Cap. Corp., 264 A.D.2d 710, 711, 694 N.Y.S.2d 750).   The defendants also failed to establish that the plaintiff converted the loans to a capital contribution (cf. Security Mut. Life Ins. Co. v. Member Servs., Inc., 46 A.D.3d 1077, 1078, 848 N.Y.S.2d 389;  J.L.B. Equities v. Mind Over Money, Ltd., 261 A.D.2d 510, 691 N.Y.S.2d 65).

The defendants' remaining contentions are either improperly raised for the first time on appeal or without merit.