Marine Midland Bank v. DiMarzo

Order unanimously reversed, without costs, and motion granted. Memorandum: Plaintiff properly commenced this action based on an instrument for the payment of money only, i.e., a promissory note, as a motion for summary judgment in lieu of a complaint (CPLR 3213). It is from an order of Special Term denying its motion that plaintiff appeals. Execution of the note and default in payment having been established by plaintiff, and not being denied by defendant, it was incumbent upon defendant to present sufficient evidentiary proof to raise a triable issue of fact (Shields v Stevens, 55 AD2d 1017;…