Bank Leumi Trust Co. v. Rattet & Liebman

182 A.D.2d 541 | N.Y. App. Div. | 1992

Order, Supreme Court, New York County (William J. Davis, J.), entered August 9, 1991, which granted plaintiff summary judgment in lieu of complaint against defendants, and judgment of same court and Justice entered thereon on August 19, 1991 awarding plaintiff the amount of $198,644.31 including interest, costs and disbursements, unanimously affirmed, with costs.

The Bank established a prima facie case by setting forth the notes, the unconditional guaranties, and the nonpayment thereof (Gateway State Bank v Shangri-La Private Club for Women, 67 NY2d 627, affg for reasons stated at 113 AD2d 791). Defendant-appellant Liebman, therefore, was required to come forward with proof showing the existence of a triable issue of fact with respect to a bona fide defense (Banesto Banking Corp. v Teitler, 172 AD2d 469). The conclusory and unsubstantiated allegations of fraud in the inducement set forth in affidavits submitted by Liebman in opposition to the Bank’s motion for summary judgment in this case are insufficient to meet this burden (supra; see also, Bank Leumi Trust Co. v Cosmopolitan Broadcasting Corp., 166 AD2d 207). Liebman’s claim, that the notes and guaranties are not instruments for the payment of money only, is without merit. The fact that the interest rate is not set forth specifically in the note but is tied to the Bank’s reference rate, and the fact that a different rate of interest applies after maturity, do not preclude recovery under CPLR 3213 (Community Natl. Bank & Trust Co. v I.M.F. Trading, 167 AD2d 193).

We have considered appellant’s remaining argument and find it to be without merit. Concur — Carro, J. P., Rosenberger, Kupferman, Kassal and Smith, JJ.