Summary
concluding that the lower court properly denied summary judgment where documentary evidence established that "a factual issue existed as to whether the defendant was entitled to a set-off
Summary of this case from Hack v. StangOpinion
April 11, 1994
Appeal from the Supreme Court, Queens County (Rutledge, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The subject promissory note made by the corporate defendant is not a negotiable instrument and therefore, the plaintiffs are not holders in due course (see, UCC 3-102 [e]; 3-302; 80 N.Y. Jur 2d, Negotiable Instruments and Other Commercial Paper, § 9). Under the facts presented here, we agree with the conclusion of the Supreme Court that the plaintiffs failed to establish their entitlement to compel payment on the note as a matter of law. The note is intertwined with a shareholders' agreement and a subordination agreement. The court properly considered the three documents together in finding that factual issues existed concerning whether the conditions for payment on the note had been satisfied. Additionally, a factual issue existed as to whether the defendant was entitled to a set-off.
We have considered the plaintiffs' remaining contentions and find them to be without merit. Balletta, J.P., Rosenblatt, Ritter and Altman, JJ., concur.