Order, Supreme Court, New York County (Harold B. Beeler, J.), entered January 12, 2009, which, insofar as appealed from as limited by the briefs, in this action where plaintiffs seek, inter alia, a declaratory judgment that the monies they transferred to defendant Enrico Pellegrini and defendant-respondent constituted a loan rather than a gift, denied plaintiffs' motion for summary judgment, unanimously affirmed, with costs.
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This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Saxe, Moskowitz, Renwick, Richter, JJ.
"On a motion for summary judgment, the court should accept as true the evidence submitted by the opposing party" (O'Sullivan v Presbyterian Hosp. in City of N.Y. at Columbia Presbyt. Med. Ctr., 217 AD2d 98, 101 ). Here, defendant-respondent submitted evidence in admissible form which raised a triable issue of fact as to whether the money at issue was a gift or a loan, including, inter alia, an affidavit from a non-party who said that plaintiff Roberta Pellegrini had told her that plaintiffs had given defendants money to buy a house.
We have considered plaintiffs' remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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