Ping Ji v Malik

Ping Ji v Malik 2009 NY Slip Op 09200 [68 AD3d 835] December 8, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Ping Ji et al., Appellants,
v
Mohammed Malik, Respondent.

—[*1] Daniel Cobrinik, New York, N.Y., for appellants.

Horing, Welikson & Rosen, P.C., Williston Park, N.Y. (Niles C. Welikson and Randi B. Gilbert of counsel), for 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 nonjury 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.

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 [2008]; Lorenz Diversified Corp. v Falk, 44 AD3d 910 [2007]; Central Islip Co-op. G.L.F. Serv. v Tsantes, 17 AD2d 852 [1962]; Abrahamson v Steele, 176 App Div 865 [1917]). 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.