Promissory notes and summary judgment in lieu of a complaint.

Practice point: To establish prima facie entitlement to summary judgment in lieu of a complaint, a plaintiff must show that the defendant executed a  promissory note containing an unequivocal and unconditional obligation to repay, and defendant's failure to pay in accordance with the note's terms. Once the plaintiff submits evidence establishing these elements, the burden shifts to the defendant to submit evidence establishing the existence of a triable issue with respect to a bona fide defense.

Student note: .Whether a note precludes a fraud in the inducement defense hinges upon the language used by the parties. The key is whether the obligor's reliance on a proffered misrepresentation is reasonable in light of the language used in the note.

Case: Zyskind v. FaceCake Mktg. Tech., Inc., NY Slip Op 08781 (1st Dept. 2012).

Here is the decision.

Wednesday’s issue: Preemption.