165 A.D.2d 568 | N.Y. App. Div. | 1991
OPINION OF THE COURT
In December 1982 defendant entered into a series of agreements as part of a tax shelter for the 1982 tax year. These agreements included an embryo recovery and transfer agreement, a dairy cattle purchase offer agreement, a dairy cattle maintenance agreement, a security agreement and a promissory note for $25,000 which is the subject of this lawsuit. By the terms of the note, drawn to Dreamstreet Holsteins, Inc. (hereinafter Dreamstreet), defendant promised to pay $25,000, $5,000 upon execution of the note and the balance on December 31, 1986 with interest at the rate of 12% per annum. Dreamstreet endorsed the note to the order of European American Bank as collateral for a loan by that bank to Dreamstreet. Thereafter, as part of a debt restructuring plan, European American Bank endorsed the note in blank and it was delivered with other securities to Cooperatieve Céntrale Raiffeisen-Boerenleenbank, B.A. (hereinafter Rabobank) on July 18, 1985 as security for a multimillion dollar loan to a Dreamstreet affiliate. On September 30, 1988 Rabobank assigned its interest in the note to plaintiff, its wholly owned subsidiary, and on February 9, 1990 plaintiff commenced this action seeking summary judgment in lieu of complaint. Supreme Court denied the motion and this appeal ensued.
Defendant’s note is a clear, unambiguous and unconditional promise to pay a specified sum on a specified date and is
Assuming, arguendo, that defendant has alleged facts of an evidentiary nature which raise triable issues as to a defense, they are unavailing to defendant because plaintiff has demonstrated that it is a holder in due course and, as such, is not subject to those defenses (see, UCC 3-307 [3]; First Intl. Bank v Blankstein & Son, 59 NY2d 436, 444). Defendant correctly contends that plaintiff is not a holder in due course in its own right because it took the note subsequent to its maturity date (see, UCC 3-302 [1] [c]; 3-304 [3]; see also, Chemical Bank v Haskell, 51 NY2d 85, 92). However, if Rabobank enjoys the status of holder in due course, so does plaintiff as its assignee (see, UCC 3-201). In order for Rabobank to be a holder in due course, it must have taken the instrument for value, in good faith and without notice that it was overdue or subject to a defense (UCC 3-302 [1]). The record is clear that Rabobank took the note for value and our inquiry becomes whether plaintiff has presented evidence sufficient to demonstrate that Rabobank took the note in good faith and without notice of a defense.
In determining whether Rabobank took the instrument in good faith, the inquiry is whether it "actually knew” of a defense or of facts giving rise to a defense so that its action in taking the instrument amounted to bad faith (Chemical Bank v Haskell, supra). Roger Barr, a vice-president of Rabobank, averred in a supporting affidavit that the bank took defen
Order reversed, on the law, with costs, motion granted and summary judgment awarded to plaintiff.