Sharpe v Gallop

[*1] Sharpe v Gallop 2017 NY Slip Op 51522(U) Decided on November 3, 2017 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Elsie Gallop, Queenie Jones Gallop, and Gladys L. Gallop, Appellants. NO. Felton & Associates (Regina Felton, Esq.), for appellant. Lewis A. Fidler, Esq., for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered January 28, 2016. The judgment, entered pursuant to an order of the same court dated October 30, 2015 granting plaintiffs' motion for summary judgment, awarded plaintiffs the principal sum of $15,000.

ORDERED that, on the court's own motion, the notice of appeal from the order dated October 30, 2015 is deemed to be a premature notice of appeal from the judgment entered January 28, 2016 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is affirmed, without costs.

In this action, plaintiffs seek to recover the principal sum of $15,000, which they claim to be owed on a promissory note. Following the joinder of issue, plaintiffs moved for summary judgment pursuant to CPLR 3212. In a supporting affidavit, plaintiff Wynton Sharpe alleged that defendants had entered into a written agreement to pay plaintiffs the principal sum of $15,000 but had failed to make such payment despite plaintiffs' demand therefor. Plaintiffs annexed a copy of a handwritten document titled "Mortgage/Note" (Note) dated August 12, 2013, which stated that plaintiffs were loaning defendants the sum of $15,000 to facilitate defendants' purchase of real property from plaintiff Wynton Sharpe; that the parties had agreed that the loan would constitute a lien on the property in favor of plaintiffs; that defendants would repay the loan "by or before May 1, 2014 at 0% interest"; and that the loan would thereafter accrue interest at the rate of 10%. The Note was signed by all three defendants. Plaintiffs also annexed a copy of a letter dated June 13, 2014 sent from their attorney to defendants, demanding payment of the $15,000 outstanding balance of the loan.

In opposition to plaintiffs' motion, defendants conceded that they had signed the Note, but asserted that there existed triable issues of fact concerning whether the Note was enforceable. In support of defendants' claim that such issues existed, defendant Elsie Gallop recounted that plaintiff Wynton Sharpe had contracted to sell defendants a house; that the house had been [*2]appraised "for a price that was low"; that the price of the house had been reduced by $65,000; and that, at the closing, plaintiff Wynton Sharpe had wrongfully demanded the additional sum of $15,000. Gallop also claimed that information about the loan had been wrongfully omitted from the HUD-1 closing statement that had been issued in connection with the sale of the house.

The Civil Court awarded summary judgment to plaintiffs, upon finding that the Note was facially sufficient and had been presented to defendants, and that defendants had failed to pay in accordance with its terms.

By demonstrating the existence of the Note, executed by defendants, which contained an unequivocal and unconditional obligation to repay, and defendants' failure to pay in accordance with the Note's terms, plaintiffs established, prima facie, their entitlement to summary judgment (see Kitovas v Megaris, 133 AD3d 720, 721 [2015]), whereupon the burden shifted to defendants to establish by admissible evidence the existence of a triable issue of fact with respect to a bona fide defense (see American Realty Corp. of NY v Sukhu, 90 AD3d 792, 793 [2011]; Jin Sheng He v Sing Huei Chang, 83 AD3d 788, 789 [2011]). Defendants, who were represented by counsel at the closing, failed to establish the existence of a triable issue of fact with respect to their claim that they had been coerced into signing the Note (see Prompt Mtge. Providers of N. Am., LLC v Zarour, 148 AD3d 849 [2017]), or with respect to any other defense.

We reach no other issue.

Accordingly, the judgment is affirmed.

WESTON, J.P., PESCE and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 03, 2017