Rosemary Mavellia et al., Respondents, v. American Transit Mix, Inc., et al., Appellants

Rosemary Mavellia et al., Respondents, v American Transit Mix, Inc., et al., Appellants. (Appeal No. 2.) [645 NYS2d 259] [MAJORITY] —Judgment unanimously reversed on the law without costs and motion denied. Memorandum: Supreme Court properly determined that there is an issue of fact concerning the validity of the assignment of the two promissory notes to plaintiff Rosemary Mavellia and, thus, properly denied plaintiff’s motion for summary judgment in lieu of complaint to recover the balance owing on those notes. The court erred, however, in granting summary judgment in lieu of complaint in favor of plaintiff Sabino J. Mavellia. By their express terms, the notes were non-negotiable and required that, in the event of default, notice of default be mailed to the maker before the "holder” could declare the unpaid balance due and payable. The record establishes that the attorneys for plaintiff Rosemary Mavellia, who was identified as the "holder” of the notes, mailed a notice of default to defendants. In view of the court’s determination that there is an issue of fact with respect to the validity of the assignment of the notes to Rosemary Mavellia, she cannot be deemed to be a "holder” (see, UCC 1-201 [20]) and the purported notice of default sent on her behalf by her attorneys is not sufficient under the terms of the notes (cf., Banditree, Inc. v Calpo, Inc., 146 AD2d 74; Siegel v Kentucky Fried Chicken, 108 AD2d 218, affd 67 NY2d 792). (Appeal from Judgment of Supreme Court, Suffolk County, Hall, J.—Summary Judgment.) Present—Pine, J. P., Fallon, Callahan, Balio and Boehm, JJ.