The following numbered papers were used on this motion: NYSCEF Document Numbers 72-108. ORDER Upon the foregoing papers, having heard oral argument1, and due deliberation having been had, the within plaintiff’s motion for summary judgment is determined as follows. Background This longstanding action commenced by plaintiff involves his claim that defendants failed to pay money loaned to them, as evidenced by promissory notes. The action was commenced by a summons with motion for summary judgment in lieu of complaint. The action previously being before the Appellate Division, Second Department, a recital from their opinion as to what has transpired heretofore is in order:2 On April 22, 2014, the plaintiff, Gary Porat, and the defendants, Svetlana Rybina and Igor Rybin, executed three promissory notes in which Porat was the lender, Rybina was the borrower, and Rybin was both a borrower and guarantor. When the defendants defaulted on the promissory notes, the plaintiff commenced this action by motion for summary judgment in lieu of complaint pursuant to CPLR 3213 to recover on the notes, and the defendants cross-moved, inter alia, to dismiss the action. The Supreme Court, among other things, granted the plaintiff’s motion and denied those branches of the defendants’ cross motion which were to dismiss the action insofar as asserted against Rybin. The defendants appeal. Under CPLR 3213, a plaintiff establishes its prima facie entitlement to judgment as a matter of law with respect to a promissory note if it “show[s] the existence of a promissory note, executed by the defendant, containing an unequivocal and unconditional obligation to repay, and the failure by the defendant to pay in accordance with the note’s terms” (Lugli v. Johnston, 78 AD3d 1133, 1135 [2010]). Once a plaintiff has established its prima facie entitlement to judgment as a matter of law, “the burden then shifts to the defendant to submit evidence establishing the existence of a triable issue with respect to a bona fide defense” (Jin Sheng He v. Sing Huei Chang, 83 AD3d 788, 789 [2011]). Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by his submission of the three promissory notes that were executed by both defendants, which contained an unconditional obligation to repay the plaintiff by a certain date, and his sworn affidavit which averred that the defendants had defaulted on all three notes (see Lugli v. Johnston, 78 AD3d at 1135). In opposition, the defendants raised a triable issue of fact with respect to the defense of lack of consideration, by submitting their sworn affidavits which averred that the plaintiff failed to transfer any funds or give any financial benefits to the defendants pursuant to the promissory notes (see Denjonbklyn, Inc. v. Rojas, 154 AD3d 734, 735 [2017]; American Realty Corp. of NY v. Sukhu, 90 AD3d 792, 793 [2011]). In reply, the plaintiff failed to submit admissible evidence addressing the defendants’ contentions. Accordingly, the Supreme Court should have denied the plaintiff’s motion for summary judgment in lieu of complaint (see Denjonbklyn, Inc. v. Rojas, 154 AD3d at 735). (Porat v. Rybina, 177 AD3d 632, 632-633 [2d Dept 2019.) In an attempt to rectify the deficiencies of the summary judgment motion papers which commenced this action, plaintiff has again moved for summary judgment, this time including more, different documentary evidence relied upon. Plaintiff's Contentions In his affidavit, plaintiff maintains that defendants agreed to repay a total of $132,482.50 reflected in three promissory notes executed on April 22, 2014: $30,000.00 to be repaid by December 22, 2014; $62,568.00 by April 22, 2015; and $39,914.50 by April 22, 2015. The notes were given for value received. They were guaranteed by defendant Rybin. Plaintiff had loaned the money to defendants so that they could operate their business, Immortality Healing, Inc. (IMI), an ecommerce platform. Plaintiff would hold a 50 percent interest in the business. Fifty percent of the profits were to be shared with him. Other than the loans, plaintiff had nothing to do with the business. (See generally NYSCEF Doc No. 73, Porat aff
1-13.) Plaintiff attested to Exhibit G being a full list of payments and transfers "from Partner A. Capital, transferred after the execution of the Notes" (id. 14). IMI, while not substantially profitable, earned approximately $450,000 in the three years prior to the initial litigation (see id. 15). Defendants never repaid the promissory notes (see id. 16). Plaintiff described the litigation which took place leading to the Appellate Division decision (see id.
