State Bank of Albany v. O'Connell

Appeal (1) from an order of the Supreme Court at Special Term (Prior, Jr., J.), entered April 15, 1983 in Albany County, which granted plaintiff’s motion for summary judgment, and (2) from the judgment entered thereon. Between December 21,1978 and March 21,1980, defendant, who was then an officer of plaintiff bank, caused checks to be issued that were payable to fictitious persons and entities. He also loaned money on promissory notes that were signed by fictitious persons or by persons related to defendant. The balance presently remaining due on these obligations is $387,902. On December 11, 1980, defendant was indicted by the Grand Jury of the United States District Court of the Northern District of New York in five separate indictments, all charging various crimes which involved defendant’s embezzlement and misapplication of plaintiff’s funds. On January 30,1981, defendant signed a plea agreement in which he admitted that at any trial the government would prove the manner and means by which he misapplied plaintiff’s moneys. He was permitted to plead guilty to the second count of indictment No. 80-CR-137 in satisfaction of all charges. Plaintiff commenced this action to recover the unpaid moneys due and owing to it as a result of defendant’s wrongdoing and moved for summary judgment, a motion which Special Term granted, resulting in this appeal. We agree with the determination of Special Term. In support of its motion, plaintiff filed documentary proof of defendant’s plea and the plea agreement which defendant personally signed, as well as a schedule of *895each and every transaction and the unpaid balance due on each. Defendant filed no personal affidavit. He relies on an affidavit of his attorney and bare conclusory allegations which are insufficient to defeat plaintiff’s motion, supported as it was by the documentary proof of defendant’s own admissions (see S. T. Grand, Inc. v City of New York, 32 NY2d 300) and a schedule of the present account of indebtedness (see State Bank of Albany v McAuliffe, 97 AD2d 607, app dsmd 61 NY2d 758). The order and judgment of Special Term should be affirmed. Order and judgment affirmed, with costs. Main, J. P., Casey, Mikoll, Yesawich, Jr., and Levine, JJ., concur.