Cicconi v McGinn, Smith & Co., Inc.

Cicconi v McGinn, Smith & Co., Inc. 2006 NY Slip Op 09708 [35 AD3d 292] December 21, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 14, 2007

Kethe Cicconi, Respondent,
v
McGinn, Smith & Co., Inc., Appellant, et al., Defendant.

—[*1]Order, Supreme Court, New York County (Karla Moskowitz, J.), entered February 1, 2005, which granted plaintiff's motion for partial summary judgment on his second cause of action to enforce a promissory note, unanimously affirmed, with costs.

Plaintiff made a prima facie case for a right to payment by proof of the note and the debtor's failure to make the payments called for therein (Boland v Indah Kiat Fin. [IV] Mauritius, 291 AD2d 342 [2002]). Defendant McGinn, Smith failed to rebut sufficiently plaintiff's statement of material facts. McGinn, Smith's counterclaims were not sufficiently interwoven with the note to be considered a setoff against plaintiff's claim (see Reed v Shoratlantic Dev. Co., 121 AD2d 525 [1986]).

We have considered McGinn, Smith's remaining arguments and find them without merit. Concur—Buckley, P.J., Mazzarelli, Andrias, Sullivan and Sweeny, JJ.