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Pennsylvania Higher Education Assistance Agency v. Musheyev

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 1, 2009

PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY, RESPONDENT,
v.
ALEXANDER N. MUSHEYEV, APPELLANT.

In an action to recover on a promissory note, the defendant appeals from an order of the Supreme Court, Queens County (Rosengarten, J.), dated January 8, 2009, which, inter alia, granted the plaintiff's motion for summary judgment on the complaint.

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.

WILLIAM F. MASTRO, J.P., ARIEL E. BELEN, L. PRISCILLA HALL and LEONARD B. AUSTIN, JJ.

(Index No. 27544/05)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The Supreme Court properly granted the plaintiff's motion for summary judgment on the complaint. The plaintiff established its prima facie entitlement to judgment as a matter of law by submitting proof of the existence of the promissory note executed by the defendant and the defendant's default in making payments pursuant to that note (see Verela v Citrus Lake Dev., Inc., 53 AD3d 574, 575; Levien v Allen, 52 AD3d 578; Anand v Wilson, 32 AD3d 808). In opposition, the defendant failed to raise a triable issue of fact with respect to a bona fide defense (see Quest Commercial, LLC v Rovner, 35 AD3d 576; Famolaro v Crest Offset, Inc., 24 AD3d 604; Bank of N.Y. v Vega Tech. USA, LLC, 18 AD3d 678). Contrary to the defendant's contention, his claim that the 2005 agreement resolving then-ongoing litigation amended the terms of the promissory note is not supported by the evidence (see Raico v Concorde Funding Group, 60 AD3d 834, 836).

The defendant's remaining contention is without merit.

MASTRO, J.P., BELEN, HALL and AUSTIN, JJ., concur.

20091201

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