In this proceeding for a turnover, the petitioner, the Public Administrator of Queens County is seeking repayment of $25,000.00, which she asserts was loaned by the decedent to the respondent, Peter Lagonikos, Esq.The Public Administrator bases her claim on two instruments. The first is a copy of a promissory note dated October 13, 2012 which reads in pertinent parts as follows:“For value received the undersigned Peter Lagonikos…promises to pay to George Condogeorge…the principal sum of Dollars ($_________), all as hereinafter provided upon the following terms and conditions:Security. This Note and the sums evidenced hereby will be secured by all Maker’s interest in a cooperative located at 88-10 35th Avenue, Unit 1C, Jackson Heights, New York 11372…Maker shall satisfy this note as soon as practicable and in good faith. This Note shall be construed according to the laws of the State of New York.”Additionally, petitioner submitted a cashier’s check dated November 8, 2012, in the amount of $25,000.00 which reads:“Pay to the Order of Flushing Savings Bank, FSB from George Condogeorge to Peter Lagonikos — Loan.”The Public Administrator claims that the copy of the promissory note and the cashier’s check, when taken in conjunction, establish a debt owed by the respondent to the estate. Both parties acknowledge the original promissory note has not been located.Upon completion of discovery, respondent moves for summary judgment pursuant to CPLR §3212 dismissing the petition. Respondent alleges the petitioner is barred as a matter of law from recovering on the alleged promissory note because the subject document does not legally establish its terms, and also due to the fact that the Public Administrator possesses only a copy of the alleged promissory note and is unable to account for the whereabouts of the original.Summary judgment will be granted only when the party seeking summary judgment has established that there are no triable issues of fact (Alvarez v. Prospect Hosp., 68 NY2d 320; Andre v. Pomeroy, 35 NY2d 361). The party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law (Alvarez v. Prospect Hosp., supra; Winegrad v. New York University, 64 NY2d 851; Zuckerman v. City of New York, 49 NY2d 557). In other words, a respondent moving for summary judgment must submit evidence which negates, prima facie, an essential element of the petitioner’s proceeding. (Rosabella v. Metro. Trans. Auth., 23 AD3d 365).To defeat a motion for summary judgment, the opponent must assemble and lay bare affirmative proof to demonstrate the existence of a genuine triable issue of fact (Stainless, Inc. v. Employers Fire Ins. Co., 69 AD2d 27, aff’d 49 NY2d 924). The papers submitted in support of and in opposition to the motion are scrutinized in a light most favorable to the party opposing the motion, and the court must give that party the benefit of every inference which can be drawn from the evidence (Negri v. Stop & Shop, Inc., 65 NY2d 625).In support of his motion for summary judgment, the respondent submitted an attorney’s affirmation, the pleadings, and petitioner’s responses to discovery demands-including a photocopy of the alleged promissory note and a photocopy of a cashier’s check.In opposition to the motion, petitioner submitted, inter alia, an attorney’s affirmation, a photocopy of the alleged promissory note, a copy of the cashier’s check, the deposition transcript of the respondent, and a stipulation of settlement by and between Peter Lagonikos and Flushing Savings Bank, FSB.Under the law applicable in the present case, the party who claims to be the owner of an instrument that is lost, destroyed, or stolen does not qualify as “a holder in due course” as does one who lawfully possesses a negotiable instrument under UCC 3-302. Despite this, UCC 3-804 allows one to maintain an action as holder on a promissory note even though the instrument has been lost or destroyed (Weiss v. Phillips, 157 AD3d 1). A party seeking to recover on an instrument that is lost, destroyed, or stolen is required to submit [1] due proof of ownership, [2] the fact which prevent its production of the note, [3] and its terms (UCC 3-804; See, Deutsche Bank Natl. Trust Co. v. Anderson, 161 AD3d 1043).Initially, respondent has established prima facie that the terms of the note are not established. UCC 3-104 requires that a promissory note be signed by the maker, contain an unconditional promise to pay a sum certain, and be payable to the bearer. Here, the copy of the promissory note submitted fails to provide sufficient evidence of its terms as the instrument, on its face, does not specify a sum certain owed to satisfy payment on the note (UCC 3-104, Official Comment).In opposition, petitioner asserts she has presented sufficient circumstantial evidence to demonstrate an issue of fact exists that the principal amount of the note was $25,000.00. Petitioner bases her theory upon the cashier’s check of November 18, 2012 in said amount, along with a settlement agreement by and between respondent and Flushing Savings Bank of which decedent was not a party. Petitioner’s hypothesis as set forth in her counsel’s affirmation is that the promissory note is for repayment of the $25,000.00 that decedent loaned to respondent in order to satisfy his settlement with Flushing Savings Bank. Other than petitioner’s counsel’s affirmation, there is no other evidence supporting this theory and respondent has denied same in his deposition.The court finds the above fails to provide legally sufficient evidence to satisfy petitioner’s burden in proving the terms of the promissory note sufficient to raise an issue of fact. However, even giving petitioner the benefit of the doubt in this regard and finding that, although tenuous, the proof does constitute an issue of fact with regard to the terms of the note, the crucial issue at bar is the inadequacy of the petitioner’s explanation surrounding the custody and loss of the original note (See, Felt v. Olson, 51 NY2d 977; Marrazzo v. Piccolo, 163 AD2d 369).The party seeking to enforce a lost instrument is required to account for its absence and this requires that there be sufficient evidence of the facts which prevent its production in court (UCC 3-804, Official Comment). Here, respondent has established in his papers prima facie that the record is devoid of any facts which account for the absence of the original promissory note. The burden then shifts to the petitioner to produce evidence in opposition sufficient to raise a triable issue of fact. The only evidence submitted in opposition on this issue however, is counsel for petitioner’s affirmation that the Public Administrator is limited in her knowledge about the whereabouts of the promissory note “due to the decedent’s expiration and the lack of cooperation by [the respondent].” Such arguments are conclusory and do not either raise an issue of fact or a legally cognizable explanation. Petitioner fails to include any evidence in the record as to when the search for the note occurred, who performed same, the steps taken in searching for the note, or when or how the note was lost (See, US Bank N.A. v. Richards, 155 AD3d 522; Ventricelli v. DeGennaro, 221 AD2d 231). As this proof does not raise an issue of fact, respondent is entitled to the relief requested.Accordingly, respondent’s motion for summary judgment is granted and the petition is dismissed.This is the decision and order of the Court.Dated: July 1, 2019
