69 A.D.2d 805 | N.Y. App. Div. | 1979
In an action on a promissory note and a written guarantee thereof, plaintiff appeals from an order of the Supreme Court, Suffolk County, dated September 29, 1978, which denied its motion for summary judgment. Order reversed, on the law, with $50 costs and disbursements, and plaintiff is awarded summary judgment against defendants in the sum of $11,512.31, with interest. The action is remanded to Special Term to hear and determine plaintiff’s fair and reasonable attorney’s fees. One who contests a motion for summary judgment must present sufficient proof to demonstrate the existence of a genuine triable factual issue (Andre v Pomeroy, 35 NY2d 361; Di Sabato v Soffes, 9 AD2d 297). Defendants raised no genuine triable issue of fact as to their liability on the note and guarantee. The right to interpose a counterclaim was waived by defendants in the promissory note and guarantee and, therefore, one may not be maintained in this action. We do not rule on the sufficiency of paragraph 4 of the answer insofar as it may be alleged as the basis of a complaint in an independent action. Titone, J. P., O’Connor, Margett and Martuscello, JJ., concur.