Bekins Van Lines Co. v. Naum Moving & Storage Co.

Order unanimously affirmed without costs. Memorandum: On April 7, 1989, the parties herein entered into a complex transaction concerning the transfer of assets and the refinancing of debt. Plaintiff brought a motion for summary judgment in lieu of complaint, claiming monies due under three promissory notes, and defendants cross-moved for summary judgment rescinding the parties’ agreement. The determination of plaintiff’s claim is controlled, as agreed upon *1021by the parties in the notes, by Illinois law. Supreme Court denied the motions, and the parties cross-appeal. We affirm.

In the circumstances of this case, the notes must be read together with and in reference to the contemporaneous agreements executed among the parties (see; Magnuson v Schaider, 183 Ill App 3d 344, 357, 364, 538 NE2d 1309, 1318, 1322; see also, Ill Rev Stat ch 26, ¶ 3-119 [1]). Defendants allege that plaintiff has breached those agreements. If those allegations, made upon personal knowledge, are substantiated, defendants would have a defense to plaintiff’s claim premised on the failure of consideration (see, Schwaner v Belvidere Med. Bldg. Partnership, 155 Ill App 3d 976, 985-986, 508 NE2d 522, 528; First Natl. Bank v Chapman, 51 Ill App 3d 738, 740, 366 NE2d 937, 940). Accordingly, plaintiff is not entitled to judgment as a matter of law.

We have examined the issue raised by defendants’ cross appeal, which is governed by New York law, and find it to be without merit (see, Rudman v Cowles Communications, 30 NY2d 1, 13-14). (Appeals from Order of Supreme Court, Onondaga County, Miller, J.—Summary Judgment.) Present—Callahan, A. P. J., Boomer, Pine, Balio and Lawton, JJ.