North American Pneumatic Tube Co. v. Mishkin

—Order unanimously affirmed with costs. Memorandum: Supreme Court properly granted plaintiffs cross motion for summary judgment based on proof of the existence of the promissory note and nonpayment (see, Alicanto v Woolverton, 142 AD2d 703, lv denied 73 NY2d 702; Grasso v Shutts Agency, 132 AD2d 768, appeal dismissed 70 NY2d 797). The parol evidence proffered by defendant was an impermissible attempt to alter the express terms of that unambiguous note and was insufficient to defeat summary judgment (see, Kornfeld v NRX Technologies, 93 AD2d 772, affd 62 NY2d 686; Alicanto v Woolverton, supra; Grasso v Shutts Agency, supra). Supreme Court’s earlier denial without prejudice of plaintiffs motion for summary judgment in lieu of complaint did not preclude plaintiffs cross motion (see, Technical Tape v Spray-Tuck, Inc., 146 AD2d 517, 518, lv dismissed 74 NY2d 791). (Appeal from Order of Supreme Court, Onondaga County, Mordue, J. — Summary Judgment.) Present — Green, J. P., Pine, Lawton, Callahan and Boehm, JJ.