Banner Industries v. Key B.H. Associates

Plaintiff established a prima facie case by proof of execution of the promissory note executed by key and the guaranty by
Berman, and defendants' failure to make payments called for by their terms. (Seaman Andwall Corp. v. Wright Mach. Corp., 31
A.D.2d 136, 137, aff'd 29 N.Y.2d 617; Gateway State Bank v. Shangri-La Private Club for Women, Inc., 113 A.D.2d 791, aff'd
67 N.Y.2d 627). Thus, it was incumbent upon defendants to come forward with proof of evidentiary facts showing the existence
of a triable issue of fact with respect to a bona fide defense. (Gateway State Bank v. Shangri-La, supra, at 792. The unsubstantiated
and conclusory allegations of fraudulent inducement and fraudulent misrepresentations proffered by defendants were insufficient
to meet his burden. Defendants did not set forth with the requisite particularity the details of the alleged fraud (See, New
York Fruit Auction Corp. v. City of New York, 81 A.D.2d 159, 161, aff'd 56 N.Y.2d 1015). Having properly disposed of the parties'
claims, on the merits, the court properly dismissed as moot the separate action commenced by defendants against plaintiff,
arising out of the same transaction, and based upon the same unsubstantiated claim of fraud.