Staten Island Savings Bank, Respondent, v. Bayview Associates et al., Defendants, and Ralph Permahos, Appellant

Staten Island Savings Bank, Respondent, v Bayview Associates et al., Defendants, and Ralph Permahos, Appellant. [673 NYS2d 1017] [MAJORITY] —In an action to recover upon a mortgage note and a guarantee commenced pursuant to CPLR 3213 by motion for summary judgment in lieu of complaint, the defendant Ralph Permahos appeals from so much of an order and judgment (one paper) of the Supreme Court, Richmond County (Cusick, J.), dated June 6, 1997, as granted the motion and dismissed his counterclaim. Ordered that the order and judgment is affirmed insofar as appealed from, with costs. To establish a prima facie case in a motion for summary judgment in lieu of complaint, the movant must demonstrate the existence of the instrument and a failure to make the payments called for by its terms (see, Interman Indus. Prods, v R.S.M. Electron Power, 37 NY2d 151, 155). The plaintiffs submission of the note, along with the appellant’s guaranty, together with proof that payments were not made according to the terms thereof, clearly establishes the plaintiffs prima facie entitlement to summary judgment. The appellant’s remaining contentions are without merit. We find no basis for awarding sanctions on this appeal. Rosenblatt, J. P., Ritter, Altman and Krausman, JJ., concur.