Solomon v Langer

Solomon v Langer 2009 NY Slip Op 07335 [66 AD3d 508] October 15, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 9, 2009

Judith Solomon, Respondent,
v
Andrew Langer, Appellant.

—[*1] Jack L. Glasser, P.C., Jamaica (Patrick T. McGuire of counsel), for appellant.

Steven G. Legum, Mineola, for respondent.

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.

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 [*2]preclude CPLR 3213 consideration" (Alard, L.L.C. v Weiss, 1 AD3d 131,131 [2003]). Concur—Gonzalez, P.J., Friedman, Moskowitz, Renwick and DeGrasse, JJ. [See 2008 NY Slip Op 31651(U).]