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Solomon v. Langer

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


October 15, 2009

JUDITH SOLOMON, PLAINTIFF-RESPONDENT,
v.
ANDREW LANGER, DEFENDANT-APPELLANT.

Appeal from order, Supreme Court, New York County (Joan A. Madden, J.), entered June 17, 2008, which, in an action for monies allegedly due and owing under a promissory note, inter alia, granted plaintiff's motion for summary judgment in lieu of complaint, deemed an appeal from judgment, same court and Justice, entered July 29, 2008 (CPLR 5501[c]), awarding plaintiff the principal sum of $200,000 plus interest, and, so considered, said judgment unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Friedman, Moskowitz, Renwick, DeGrasse, JJ.

113701/07

Plaintiff established her entitlement to summary judgment in lieu of complaint on the promissory note made by defendant by establishing execution, delivery, demand and failure to pay (see Israel Discount Bank of N.Y. v 500 Fifth Ave. Assoc., 167 AD2d 203 [1990]). Defendant failed to substantiate, in evidentiary form, his assertion that payments to plaintiff's mother, an alleged business acquaintance since deceased, discharged the note. Defendant sets forth no evidence of misleading conduct on the part of plaintiff indicating that she gave her mother the authority to transact business on her behalf (compare Hallock v State of New York, 64 NY2d 224, 231 [1984]). Furthermore, the note unequivocally stated that payment was to be made directly to plaintiff and the parol evidence rule bars consideration of defendant's purported oral agreement with plaintiff's mother regarding payment of the loan (see Manufacturers Hanover Trust Co. v Margolis, 115 AD2d 406 [1985]). Moreover, it is settled that "invocation of defenses based on facts extrinsic to an instrument for the payment of money only do not preclude CPLR 3213 consideration" (Alard, L.L.C. v Weiss, 1 AD3d 131,767 NYS2d 11, 2003 N.Y. Slip Op. 18173).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091015

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