Opinion
April 21, 1992
Appeal from the Supreme Court, New York County (William J. Davis, J.).
The Bank established a prima facie case by setting forth the notes, the unconditional guaranties, and the nonpayment thereof (Gateway State Bank v Shangri-La Private Club for Women, 67 N.Y.2d 627, affg for reasons stated at 113 A.D.2d 791). Defendant-appellant Liebman, therefore, was required to come forward with proof showing the existence of a triable issue of fact with respect to a bona fide defense (Banesto Banking Corp. v Teitler, 172 A.D.2d 469). The conclusory and unsubstantiated allegations of fraud in the inducement set forth in affidavits submitted by Liebman in opposition to the Bank's motion for summary judgment in this case are insufficient to meet this burden (supra; see also, Bank Leumi Trust Co. v Cosmopolitan Broadcasting Corp., 166 A.D.2d 207). Liebman's claim, that the notes and guaranties are not instruments for the payment of money only, is without merit. The fact that the interest rate is not set forth specifically in the note but is tied to the Bank's reference rate, and the fact that a different rate of interest applies after maturity, do not preclude recovery under CPLR 3213 (Community Natl. Bank Trust Co. v I.M.F. Trading, 167 A.D.2d 193).
We have considered appellant's remaining argument and find it to be without merit.
Concur — Carro, J.P., Rosenberger, Kupferman, Kassal and Smith, JJ.