Mitsubishi Trust & Banking Corp. v. Housing Services Associates

Majority

p. 305

Mitsubishi Trust and Banking Corporation, Respondent, v Housing Services Associates, Appellant.

[642 NYS2d 887]

Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered December 28, 1995, awarding plaintiff the total sum of $3,696,937.03, and bringing up for review the order of the same court and Justice entered December 13,1995, which granted plaintiff’s motion for summary judgment in lieu of complaint, unanimously affirmed, with costs.

Summary judgment pursuant to CPLR 3213 was appropriate under the circumstances presented herein. The notes at issue constitute instruments for the payment of money only. Plaintiff established that the notes were duly executed and that defendant defaulted in its obligation to pay thereunder (see, SeamanAndwall Corp. v Wright Mach. Corp., 31 AD2d 136 , 137, affd 29 NY2d 617 ). While defendant raises possible defenses and counterclaims concerning fraud, contract modification, contract

p. 306

breach and lack of consideration, these allegations either are unsubstantiated, are irrelevant to the subject notes, or create issues which are separate and severable from plaintiffs claim under the notes and do not serve to defeat CPLR 3213 summary judgment treatment (see, Phillips v Cioffi, 204 AD2d 94 , lv denied 85 NY2d 810 ; Vinciguerra v Northside Partnership, 188 AD2d 861 ). Concur — Sullivan, J. P., Milonas, Rubin, Tom and Mazzarelli, JJ.

Cases cited

Seaman-Andwall Corp. v. Wright Machine Corp. 31 AD2d 136 N.Y. App. Div. 1968-12-12 at 137 p. 305
Seaman-Andwall Corp. v. Wright Machine Corp. 29 NY2d 617 N.Y. 1971-07-07 p. 305
Phillips v. Cioffi 204 AD2d 94 N.Y. App. Div. 1994-05-05 p. 306
Vinciguerra v. Northside Partnership 188 AD2d 861 N.Y. App. Div. 1992-12-17 p. 306