Pennacchio v. Edward T. Minor Co.

—In an action, inter alia, to void a promissory note and mortgage, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Demarest, J.), entered June 4, 1997, as granted the defendant’s cross motion for summary judgment (a) on its counterclaims and (b) dismissing the complaint. Ordered that the order is affirmed insofar as appealed from, with costs. In cross-moving for summary judgment, the defendant submitted evidence of the execution of the promissory note in question, and the plaintiffs’ failure to make payments according to the note’s terms. This was sufficient to demonstrate prima facie entitlement to judgment as a matter of law (see, Wasserman v Harriman, 234 AD2d 596; FGH Realty Credit Corp. v VRD Realty Corp., 231 AD2d 489). The evidence submitted by the plaintiffs was insufficient to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendant’s cross motion (see, Zuckerman v City of New York, 49 NY2d 557, 562). Bracken, J. P., Copertino, McGinity and Luciano, JJ., concur.