DeLuca v. North Shore Medical Imaging, L. L. P.

—In an action to recover on a promissory note brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, where the motion papers were converted to pleadings, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Austin, J.), dated September 18, 2000, as denied his motion. Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Nassau County, for entry of an appropriate judgment. The plaintiff made a prima facie showing of entitlement to judgment as a matter of law by submitting proof of the promissory note and that the defendants had defaulted in payment thereon (see, McCann v Cronin, 276 AD2d 472; Badenhop v Badenhop, 271 AD2d 386). The burden then shifted to the defendants to establish by admissible evidence the existence of a triable issue of fact (see, McCann v Cronin, supra; J.L.B. Equities v Mind Over Money, 261 AD2d 510; Judarl v Cycle-tech, Inc., 246 AD2d 736). The defendants failed to raise a triable issue with respect to their allegations that the plaintiff breached a restrictive covenant (see, Badenhop v Badenhop, supra; cf., Vecchio v Colangelo, 274 AD2d 469; Cohen v Marvlee, Inc., 208 AD2d 792). Accordingly, the plaintiff was entitled to summary judgment. Altman, J. P., McGinity, H. Miller and Feuerstein, JJ., concur.