WACHTEL v. James L. George, et al., Defendants-Appellants.

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Supreme Court, Appellate Division, First Department, New York.

George WACHTEL, as Executor of the Estates of Ruth E. Wolfert, etc., Plaintiff-Respondent, v. Robert RICH, et al., Defendants, James L. George, et al., Defendants-Appellants.

Decided: June 23, 2005

BUCKLEY, P.J., MAZZARELLI, FRIEDMAN, MARLOW, ELLERIN, JJ. Robert S. Meloni, New York, for appellants. George Wachtel, New York, respondent pro se.

Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered October 20, 2004, insofar as it granted plaintiff's motion for partial summary judgment as against defendants James and Stephanie George and the Devonian Trust, and denied the cross motion of those defendants for partial summary judgment, unanimously affirmed, without costs.

The documentary evidence established that defendants received $75,000 pursuant to a 1997 agreement that failed to confer the bargained-for benefit upon plaintiff's decedent.   Defendants reaffirmed their responsibility to repay the $75,000 in a 1998 agreement, but never did so.   Accordingly, plaintiff made a prima facie showing of entitlement to judgment as a matter of law, and defendants failed to produce sufficient evidence of the existence of a material issue of fact requiring a trial of the action (see Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255, 309 N.Y.S.2d 341, 257 N.E.2d 890 [1970];  Preferred Capital v. PBK, Inc., 309 A.D.2d 1168, 765 N.Y.S.2d 405 [2003] ).

We have considered defendants-appellants' remaining contentions and find them unavailing.