EQUITIES INC v. MIND OVER MONEY LTD (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, Westchester County (Rosato, J.), entered June 22, 1998, which denied the motion.

ORDERED that the order is reversed, on the law, the motion is granted, and the matter is remitted to the Supreme Court, Westchester County, for the entry of an appropriate judgment.

 The plaintiff established its entitlement to judgment as a matter of law by proof of the existence of a promissory note and nonpayment according to its terms (see, Balart v. Romeo, 215 A.D.2d 616, 628 N.Y.S.2d 509;  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;  Badische Bank v. Ronel Sys., 36 A.D.2d 763, 321 N.Y.S.2d 320).   It was then incumbent upon the defendant to demonstrate, by admissible evidence, the existence of a triable issue of fact (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Kruger Pulp & Paper Sales v. Intact Containers, 100 A.D.2d 894, 895, 474 N.Y.S.2d 554).

 The defendant contended that it was fraudulently induced to execute the promissory note upon the plaintiff's oral promise to enter into a joint venture agreement with it and, as a result, was led to believe that the money advanced by the plaintiff was a capital contribution and not a loan.   The defendant failed to allege facts sufficient to show that at the time the plaintiff made its representation it never intended to honor or act on the promise (see, Liberty Moving & Stor. Co. v. Bay Shore Moving & Stor., 152 A.D.2d 682, 543 N.Y.S.2d 745;  Lanzi v. Brooks, 54 A.D.2d 1057, 388 N.Y.S.2d 946).  Furthermore, the defendant's assertion that the money advanced was a capital contribution instead of a loan contradicts the clear language of the note (see, Bosio v. Selig, 165 A.D.2d 822, 560 N.Y.S.2d 196;  Blue Ridge Business Brokers v. Ros-Mar Club, 121 A.D.2d 492, 501 N.Y.S.2d 132;  Hogan & Co. v. Saturn Mgt., 78 A.D.2d 837, 433 N.Y.S.2d 168).   Since the defendant's unsupported allegations did not raise any material issue of fact, the plaintiff's motion for summary judgment in lieu of complaint pursuant to CPLR 3213 is granted.

MEMORANDUM BY THE COURT.