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Ji v. Malik

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


December 8, 2009

PING JI, ETC., ET AL., APPELLANTS,
v.
MOHAMMED MALIK, RESPONDENT.

In an action to recover on a promissory note, the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Kitzes, J.), entered March 16, 2009, which after a non-jury trial and upon the granting of the defendant's oral application, in effect, pursuant to CPLR 4401 for judgment as a matter of law, made at the close of the plaintiffs' case, is in favor of the defendant and against them, dismissing 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.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, ARIEL E. BELEN, SHERI S. ROMAN, JJ.

(Index No. 13286/06)

DECISION & ORDER

ORDERED that the judgment is reversed, on the law, with costs, the complaint is reinstated, and the matter is remitted to the Supreme Court, Queens County, for a new trial.

Contrary to the defendant's contention, the plaintiffs established a prima facie case by submitting proof of the existence of a promissory note and the defendant's default thereon (see UCC 3-307[2]; Levien v Allen, 52 AD3d 578; Lorenz Diversified Corp. v Falk, 44 AD3d 910; Central Islip Co-op. G.L.F. Serv. v Tsantes, 17 AD2d 852; Abrahamson v Steele, 176 App Div 865). Accordingly, the Supreme Court erred in granting the defendant's oral application, in effect, pursuant to CPLR 4401 for judgment as a matter of law, and a new trial is warranted (see Central Islip Co-op G.L.F. Serv. v Tsantes, 17 AD2d at 852).

The defendant's remaining contentions are either without merit, improperly raised for the first time on appeal, or rendered academic by our determination.

DILLON, J.P., DICKERSON, BELEN and ROMAN, JJ., concur.

20091208

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