Opinion
January 24, 1991
Appeal from the Supreme Court, New York County (Carol Arber, J.).
Plaintiff commenced this action on a promissory note executed by defendant, in connection with a loan to enable defendant to purchase an interest in a limited partnership. On plaintiff's motion for summary judgment, defendant argued that he was fraudulently induced to invest in a limited partnership based on misrepresentations of third-party defendant Klempner, defendant's investment advisor, with respect to both the investment itself and Klempner's relationship with plaintiff and third-party defendant Cuyahoga Securities Corporation. However, defendant produced no evidentiary proof in admissible form of any relationship between Klempner and plaintiff. As plaintiff set forth undisputed documentary evidence, including defendant's own testimony that he executed the note, received the benefits thereof and failed to make payment, and defendant set forth only mere conclusions in opposition, the court correctly granted the motion for summary judgment (Gateway State Bank v Shangri-La Private Club for Women, 113 A.D.2d 791, affd 67 N.Y.2d 627). Nor should summary judgment have been denied because of defendant's claim that discovery was necessary because of facts exclusively within the possession of plaintiff and third-party defendants when defendant made no reasonable attempt to secure those facts in the time since commencement of the action (see, Tausig Son v Providence Washington Ins. Co., 28 A.D.2d 279, affd 21 N.Y.2d 1022).
Concur — Sullivan, J.P., Rosenberger, Wallach, Asch and Smith, JJ.