Opinion
March 3, 1975
Order, Supreme Court, New York County, entered on July 26, 1974, denying the plaintiff's motion for summary judgment in lieu of complaint, unanimously reversed, on the law, and the motion granted. Appellant shall recover of respondent $60 costs and disbursements of this appeal. The plaintiff seeks five interest payments on a senior capital note. A clause of the note subordinating its interest and principal payments "to the prior payment or provision for payment in full of all claims of all other present and future creditors" is alleged in defense, but the defendant has made no factual averments to establish the applicability of this clause. The single conclusory statement that it is not in a financial position to make payment is not in itself sufficient to create an issue of fact; the facts must be stated in evidentiary form ( Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255). Settle order on notice.
Concur — Kupferman, J.P., Lane, Nunez and Lynch, JJ.