Practice point: Plaintiff established prima facie entitlement to
judgment as a matter of law by submitting the promissory note, the
corresponding agreement between the parties, and her affidavit asserting
that the defendants failed to pay the loan in accordance with the note's terms.
In opposition, however, defendant presented
sufficient evidence to raise a triable issue of fact as to the
applicability of the defense of usury, and the Appellate Division affirmed denial of the motion.
Student note: To establish prima facie entitlement to judgment as a matter of law
with respect to a promissory note, a plaintiff must show the existence
of a promissory note, executed by the defendant, containing an
unequivocal and unconditional obligation to repay, and the failure by
the defendant to pay in accordance with the note's terms. plaintiff makes such a showing, the burden shifts to defendant to establish by admissible evidence the existence of a triable
issue of fact with respect to a bona fide defense.
Case: Ahern v. Miloslau, NY Slip Op 04438 (2d Dept. 2015)
Here is the decision.
Tomorrow's issue: CPLR 306-b and extending time.
