Coffey v. Switzoor

Coffey v Switzoor (2024 NY Slip Op 03876) Coffey v Switzoor 2024 NY Slip Op 03876 Decided on July 24, 2024 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on July 24, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department VALERIE BRATHWAITE NELSON, J.P. JOSEPH J. MALTESE LILLIAN WAN CARL J. LANDICINO, JJ. 2020-05596 2020-08411 (Index No. 602173/18) [*1]Timothy P. Coffey, respondent, v Guru Switzoor, et al., appellants. Brian McCaffrey, Attorney at Law, P.C. (Petroff Amshen LLP, Brooklyn, NY [Serge F. Petroff, James Tierney, and Steven Amshen], of counsel), for appellants. The Dweck Law Firm, LLP, New York, NY (Jack S. Dweck of counsel), for respondent. DECISION & ORDER In an action to recover on two promissory notes, the defendants appeal from (1) an order of the Supreme Court, Suffolk County (William G. Ford, J.), dated May 15, 2020, and (2) a judgment of the same court entered August 24, 2020. The order granted the plaintiff's motion for summary judgment on the complaint. The judgment, upon the order, is in favor of the plaintiff and against the defendants in the total sum of $1,575,464.75. ORDERED that the appeal from the order is dismissed; and it is further, ORDERED that the judgment is affirmed; and it is further, ORDERED that one bill of costs is awarded to the plaintiff. The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]). In October 2014, the defendants, Guru Switzoor and Janaharaja Shobana, executed two separate promissory notes, one in the amount of $500,000 in favor of Cindy Lou Bergeron and the other in the amount of $300,000 in favor of the plaintiff. Bergeron later assigned her note to the plaintiff. In February 2018, the plaintiff commenced the instant action to recover on the notes. The plaintiff moved for summary judgment on the complaint and, in an order dated May 15, 2020, the Supreme Court granted the plaintiff's motion. A judgment was entered on August 24, 2020, upon the order, in favor of the plaintiff and against the defendants in the total sum of $1,575,464.75. The defendants appeal. The Supreme Court properly granted the plaintiff's motion for summary judgment on the complaint. The plaintiff met his prima facie burden by submitting the two promissory notes, signed by both defendants, containing unequivocal terms and promises to repay, the assignment [*2]transferring the note that was originally in favor of Bergeron to the plaintiff, and his own affidavit, in which he stated that the defendants failed to pay him in accordance with the terms of the notes (see Matrix Bellport, LLC v Crest Bellport, LLC, 219 AD3d 725; Margarella v Ullian, 164 AD3d 898, 899). In opposition, the defendants failed to raise a triable issue of fact. Contrary to the defendants' contention, the plaintiff's deposition testimony did not create a triable issue of fact as to whether he had personal knowledge of the debt and the subsequent nonpayment resulting in default. Accordingly, the Supreme Court properly entered judgment in favor of the plaintiff and against the defendants in the total sum of $1,575,464.75. BRATHWAITE NELSON, J.P., MALTESE, WAN and LANDICINO, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court