Practice point: Pursuant to CPLR 3213, the plaintiff commenced this action to recover on a promissory note by
filing a summons with notice of motion for summary judgment in lieu of
complaint. The motion was denied. The plaintiff established his prima facie
entitlement to judgment as a matter of law by demonstrating the
existence of the promissory note executed by the defendant, the
unconditional terms of repayment, and the defendant's default thereunder. However, in opposition, the defendant raised a
fact question as to whether the note was procured through
coercion and duress.
Student note: The plaintiff failed
to demonstrate that the defendant should be collaterally estopped from
raising this issue, as the plaintiff failed to demonstrate that the
issue was necessarily decided against the defendant in a prior action
commenced by the plaintiff to set aside a fraudulent conveyance pursuant
to Debtor and Creditor Law §§ 273 and 276.
Case: Baldeo v. Rambaran, NY Slip Op 04763 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue: Summary judgment in a Labor Law action, attorneys' fees, and amending a bill of particulars.
