Appellate Division of the Supreme Court of New York, 2005

Famolaro v. Crest Offset, Inc.

Appellate Division of the Supreme Court of New York · Decided December 19, 2005

24 A.D.3d 604; 807 N.Y.S.2d 387

Cases that cite this one

13 later published cases cite this decision.

JPMorgan Chase Bank, N.A. v. Business Payment Systems, LLC (Appellate Division of the Supreme Court of New York 2015)
Washington Mutual Bank, FA v. Peak Health Club, Inc. (Appellate Division of the Supreme Court of New York 2008)
Rachmany v. Regev (Appellate Division of the Supreme Court of New York 2014)
Rachmany v. Regev (Appellate Division of the Supreme Court of New York 2014)
Washington Mutual Bank v. Valencia (Appellate Division of the Supreme Court of New York 2012)
Jin Sheng He v. Sing Huei Chang (Appellate Division of the Supreme Court of New York 2011)
Superior Fidelity Assurance, Ltd. v. Schwartz (Appellate Division of the Supreme Court of New York 2010)
Gullery v. Imburgio (Appellate Division of the Supreme Court of New York 2010)
Samet v. Binson (Appellate Division of the Supreme Court of New York 2010)
Pennsylvania Higher Education Assistance Agency v. Musheyev (Appellate Division of the Supreme Court of New York 2009)
Spector v. Wendy (Appellate Division of the Supreme Court of New York 2008)
Verela v. Citrus Lake Development, Inc. (Appellate Division of the Supreme Court of New York 2008)
Provident Bank v. Giannasca (Appellate Division of the Supreme Court of New York 2008)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

In an action to recover on a promissory note and guaranty, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Loughlin, J.), dated January 3, 2005, as, in effect, granted that branch of the plaintiffs motion which was for summary judgment on the issue of liability.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff sustained his initial burden of demonstrating his entitlement to judgment as a matter of law by submitting proof of the existence of the underlying note and guaranty executed *605by the defendants, the unconditional terms of repayment, and the defendants’ failure to make payment (see MDJR Enters. v LaTorre, 268 AD2d 509 [2000]; E.D.S. Sec. Sys. v Allyn, 262 AD2d 351 [1999]; Capital Circulation Corp. v Gallop Leasing Corp., 248 AD2d 578 [1998]). It was then incumbent upon the defendants to demonstrate by admissible evidence, the existence of a triable issue of fact with respect to a bona fide defense (see MDJR Enters, v LaTorre, supra; Capital Circulation Corp. v Gallop Leasing Corp., supra; Colonial Commercial Corp. v Breskel Assoc., 238 AD2d 539 [1997]).

The Supreme Court properly determined that the plain language of the note and guaranty precluded the defendants from raising the defense of breach of the bill of sale’s covenant not to compete (see E.D.S. Sec. Sys. v Allyn, supra; Mintz v Dallek & Zaret Assoc., 120 AD2d 654 [1986]; Raven El. Corp. v Finkelstein, 223 AD2d 378 [1996]). Moreover, the defendants’ unsupported conclusory allegations with respect to this defense were insufficient to defeat the plaintiffs motion (see Lay den v Boccio, 253 AD2d 540 [1998]; E.D.S. Sec. Sys. v Allyn, supra; Capital Circulation Corp. v Gallop Leasing Corp., supra). Schmidt, J.P., Cozier, Rivera and Fisher, JJ., concur.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.