Chemical Bank v. Cogan Management, Inc.

Orders, Supreme Court, New York County (Carmen Beauchamp Ciparick, J.) entered April 25, 1989 and January 2, 1990, which, inter alia, denied plaintiffs CPLR 3213 motion for summary judgment in lieu of complaint, unanimously affirmed, without costs.

In opposition to plaintiffs CPLR 3213 motion, the individual defendant asserted that his corporation’s 1984 $1,275,000 promissory note was merely an accommodation, to be discharged upon plaintiffs receipt of substitute notes from the actual recipients of the loan proceeds, investors who used the corporate defendant’s financial management services. Plaintiff did in fact receive and accept the substitute notes aggregating $956,250 from some of these investors; four others, however, made no payments, leaving a balance of $318,750. In the circumstances presented these assertions were sufficient to raise factual issues as to the defense of payment. Concur— Sullivan, J. P., Carro, Wallach, Kupferman and Kassal, JJ.