Federal Financial Co. v. Rattoballi, 245 A.D.2d 335

—In an action, inter alia, to recover the balance due on promissory notes, the defendant appeals from a judgment of the Supreme Court, Nassau County (Davis, J.), dated October 9, 1996, which, upon an order of the same court dated August 8, 1996, granting the plaintiffs motion for summary judgment, is in favor of the plaintiff and against him in the sum of $48,863.85.

Ordered that the judgment is affirmed, with costs.

Once the plaintiff established prima facie entitlement to summary judgment, the defendant, as the party opposing the motion, had the burden of producing proof in admissible form sufficient to require a trial (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d 557, 562). The defendant failed to present proof that the amounts claimed by the plaintiff as outstanding on the subject notes were inaccurate or improperly computed. Moreover, the defendant’s affirmative defenses and counterclaims were insufficient to defeat the plaintiffs motion for summary judgment in its favor (see, 12 USC §§ 1821, 1823). Under the circumstances of this case, we need not reach the issue of whether the Supreme Court’s decision in O’Melveny & Myers v Federal Deposit Ins. Corp. (512 US 79) has abrogated the Federal common law D’Oench doctrine (see, D’Oench, Duhme & Co. v Federal Deposit Ins. Corp., 315 US 447). O’Brien, J. P., Ritter, Thompson and Joy, JJ., concur.

Case Details

Case Name: Federal Financial Co. v. Rattoballi

Court Name: Appellate Division of the Supreme Court of the State of New York

Date Published: Dec 8, 1997

Citations: 245 A.D.2d 335; 666 N.Y.S.2d 25; 1997 N.Y. App. Div. LEXIS 12787

Court Abbreviation: N.Y. App. Div.