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Audi v Cleary 2010 NY Slip Op 30278(U) February 8, 2010 Supreme Court, Albany County Docket Number: 6819-09 Judge: Joseph C. Teresi Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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STATE OF NEW YORK SUPREME COURT ANTHONY J. AUDI, JR., Plaintiff, -againstMICHAEL S. CLEARY and JANET CLEARY,

COUNTY OF ALBANY

DECISION and ORDER INDEX NO. 6819-09 RJI NO. 01-09-98653

Defendants. Supreme Court Albany County All Purpose Term, January 26,2010 Assigned to Justice Joseph C. Teresi APPEARANCES: Nolan & Heller, LLP Richard H. Weiner, Esq. Attorneys For Plaintiff 39 North Pearl Street, 3rd Floor Albany, New York 12207 Ganz, Wolkenbreit & Siegfeld, LLP Robert Ganz, Esq. Attorneys for Defendants One Columbia Circle Albany, New York 12203 TERESI, J.: Plaintiff commenced this action seeking to collect damages due to Defendants alleged defaults under two notes they executed in his favor. Issue was joined by Defendants, and discovery is ongoing. Plaintiff now moves for summary judgment on both notes. Defendants oppose the motion and cross move for summary judgment on one of the two notes. Because issues of fact remain, both parties' motions for summary judgment are denied. A note holder demonstrates his prima facie entitlement to summary judgment by "demonstrating that defendant executed the ... promissory note and defaulted thereon." (Kamp v.

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Fiumer~ _AD3d_

[3d Dept. 2010], Kehoe v. Abate, 62 AD3d 1178 [3d Dept. 2009]). Such

showing shifts the burden of proof to the non-movant, to demonstrate "the existence of at least one triable issue of fact." (Estate of Goth v. Tremble, 59 AD3d 839 [3d Dept. 2009]). On this record Plaintiff demonstrated, and Defendants admitted, the existence of both notes. First, Defendants executed a "Promissory Grid Note", dated May 5,2006, in favor of Plaintiff (hereinafter "Grid Note"). Plaintiff alleged such execution in his complaint, and Defendants admitted same in their answer. The Grid Note provides for a principal balance up to $400,000, with no interest, and a maturity date of June 30, 2006. The starting principal balance of the Grid Note, as set forth on Exhibit "A" attached thereto, was $325,000. The Grid Note specifically provides that its "principal balance ... may be adjusted from time to time upon a written agreement by and between the [Defendants] and the [Plaintiff], which adjustments shall be reflected on Exhibit 'A' attached hereto." The Grid Note's Exhibit "A" is not modified from its initial $325,000 principal balance. Second, Defendants executed a "Promissory Note", dated August 11,2004, in favor of Plaintiff in the amount of$25,000 (hereinafter "Note"). Plaintiff alleged the Note's execution and amount in his complaint, which Defendants admitted in their answer. Plaintiff failed to demonstrate, however, Defendants' default under the Grid Note in the amount he claimed. Plaintiffs conclusory allegation that Defendants owe $309,481.79 on the Instead, to The Grid

Grid Note, as of September 30,2009, is not supported by any factual allegations.

establish Defendants' default, Plaintiff relies on an attached "Grid Note schedule"!.

! Plaintiff properly alleged the "Grid Note schedule" is a business record pursuant to CPLR

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