Coladonato v. Pizza

Order, Supreme Court, New York County (Stephen Crane, J.), entered March 24, 1997, granting defendant’s motion for reargument and, upon reargument, adhering to its decision and judgment of October 7, 1996, which, inter alia, granted the branches of plaintiffs motion seeking summary judgment on the complaint and dismissal of each of defendant’s affirmative defenses and the first and second counterclaims, unanimously affirmed, with costs. It is well settled that proof showing due execution and default in payment on a promissory note, which is not disputed here, establishes a prima facie case and plaintiff is entitled to summary judgment unless the defendant submits evidentiary proof sufficient to raise a genuine triable issue of fact with respect to the note (see, D’Urso v Durso Supermarkets, 201 AD2d 251, lv dismissed 83 NY2d 906; European Am. Bank v Strab Constr. Corp., 196 AD2d 479). Here, the IAS Court properly found that none of defendant’s purported defenses raise a question of fact precluding summary judgment. Defendant can separately litigate whatever counterclaims that he may have against plaintiff, and, indeed, the court severed the remaining portion of defendant’s answer. We have considered defendant’s other points and find them unpersuasive. Concur—Sullivan, J. P., Rosenberger, Rubin and Andrias, JJ.