Mohammed Al Salah, Appellant, v. Mohammed Saad Shaaban, Also Known as Mike Saad, Respondent

Mohammed Al Salah, Appellant, v Mohammed Saad Shaaban, Also Known as Mike Saad, Respondent. [MAJORITY] In an action to recover on promissory notes, the plaintiff appeals from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated January 13, 1989, which denied his motion pursuant to CPLR 3213 for summary judgment in lieu of complaint. Ordered that the order is affirmed, without costs or disbursements. The Supreme Court properly denied the plaintiff’s motion for summary judgment on the promissory notes executed by the defendant in favor of the plaintiff. The defendant’s affidavit in opposition, alleging as a defense that a stock transfer had occurred in lieu of payment of the balance due on the notes, raised a triable issue of fact sufficient to defeat the plaintiff’s summary judgment motion (cf., Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 NY2d 255, 259; see, Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Esteve v Abad, 271 App Div 725). Brown, J. P., Hooper, Sullivan and Harwood, JJ., concur.