Opinion
March 29, 1971
In an action upon promissory notes, plaintiff appeals from so much of an order of the Supreme Court, Queens County, dated September 1, 1970, as denied its motion, pursuant to CPLR 3213, for summary judgment in lieu of a complaint. Order reversed, on the law, with $10 costs and disbursements, and motion granted. Plaintiff made out a prima facie case by proof of the notes and a failure to make the payments called for ( Seaman-Andwall Corp. v. Wright Mach. Corp., 31 A.D.2d 136). Thus, it was entitled to summary judgment unless the opposing papers raised genuine factual issues ( Leumi Fin. Corp. v. Richter, 24 A.D.2d 855, affd. 17 N.Y.2d 166; Stagg Tool Die Corp. v. Weisman, 12 A.D.2d 99, 102). An examination of the affidavit submitted in opposition to the motion indicates that no evidentiary facts are set forth, but that defendant rather relies on mere conclusions of law. As noted in Stagg Tool Die Corp. v. Weisman ( supra, p. 102), "It is incumbent upon the defendant to submit proof of a defense and to show that the matters set up in his answer are real and not feigned * * * and capable of being established upon a trial." Here defendant has utterly failed to do so. Finally, it should be noted that the issue of whether plaintiff is a holder in due course does not arise until it is shown that a defense exists which would be good against a mere holder (see Uniform Commercial Code, § 3-307, subd. [3], and Official Comment thereon in McKinney's Cons. Laws of N.Y., Book 62 1/2, Part 2, Uniform Commercial Code, p. 211). Since defendant failed to show that defenses exist, plaintiff did not have the burden of proving that it is a holder in due course. Rabin, P.J., Munder, Martuscello, Shapiro and Gulotta, JJ., concur.