Opinion
February 1, 1994
Appeal from the Supreme Court, New York County (Joan B. Lobis, J.).
This case arises out of plaintiff's sale of the Key Food supermarket chain to defendants, and defendants' subsequent default on their purchase money obligations incurred in that transaction. The pertinent facts of the transaction were previously summarized by this Court in its decision on a related appeal (Durso Supermarkets v. D'Urso, 193 A.D.2d 377). In the instant case, plaintiff seeks to collect the $8.2 million due to her under the promissory note.
The IAS Court properly awarded plaintiff summary judgment upon the ground that defendants failed to come forward with evidentiary proof sufficient to raise an issue as to defenses to the note, the mortgage and the guarantees (see, National Bank v Alizio, 103 A.D.2d 690, 691, affd 65 N.Y.2d 788). In granting summary judgment, the IAS Court properly rejected defendants' argument that, at a minimum, a question of fact exists whether the lease was intended to act as additional security for defendants' obligation under the note as a result of the cross-default provisions in the mortgage securing the note, and therefore, plaintiff is precluded from recovering what she has already recovered in a related case (see, Durso Supermarkets v D'Urso, supra). In addition, defendants' argument that the lease was in fact an equitable mortgage securing the note, was not raised before the IAS Court and we decline to reach it.
Concur — Murphy, P.J., Sullivan, Carro and Wallach, JJ.