Bank Leumi Trust Co. v. Felner 70 A.D.2d 869

— Judgment, Supreme Court, New York County, entered December 1, 1977, granting plaintiff’s motion for summary judgment on seven of nine promissory notes sued upon reversed,- on the law, with costs, summary judgment denied and further discovery as to those notes directed without prejudice to renewal of the motion for summary judgment after completion of the discovery. This is an action to recover on nine promissory notes executed by Di-Com Corporation payable to Titan Air Conditioning Corporation (Titan), indorsed by the defendants, and negotiated by Titan to the plaintiff. The notes were executed in return for certain heating, ventilation and air condition work performed by Titan which defendants allege was not properly performed. Following an examination before trial of one of plaintiff’s officers, plaintiff moved for summary judgment. The defendants cross-moved for further discovery. Special Term granted plaintiff’s motion for summary judgment as to seven of the nine promissory notes, and denied defendants’ cross motion for further discovery with regard to those notes. Defendants urged in their papers opposing plaintiff’s motion for summary judgment that plaintiff was not a holder in due course and that plaintiff indeed may be suing on the notes as an accommodation to Titan. The papers presented no facts supporting those contentions. However, it is apparent that the relevant information bearing on these possible issues is entirely in the possession of the plaintiff, and that defendants’ opportunity to learn the facts was unduly limited by the failure of plaintiff’s officer to bring to the examination before trial pertinent bank records as well as by his lack of knowledge concerning aspects of plaintiff’s transactions with Titan. Accordingly, defendants are entitled to the further discovery for which they moved as to all of the notes sued upon, and summary judgment should be denied without prejudice to renewal following the completion of that discovery. (See CPLR 3212, subd [f].) Concur — Kupferman, J. P., Birns, Fein, Sandler and Lane, JJ.