Mustafa v. Jarraf Food Stores, Inc. , 51 A.D.2d 771 ( 1976 )

In an action to recover a balance owing on a nonnegotiable note, commenced by a summons and motion for summary judgment in lieu of complaint, defendants appeal (by permission) from an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated December 10, 1974, which affirmed a judgment of the Civil Court of the City of New York, Kings County, entered January 31, 1974, in favor of plaintiff, upon the grant of his motion. Order affirmed, without costs or disbursements, and with leave to defendants to apply to the Civil Court for reconsideration of the motion, provided the said application is made within 20 days after the service of a copy of the order to be entered hereon, with notice of entry thereof. Although no triable issue is shown by the papers in the record on this appeal, the affidavit and the exhibits therein, submitted to this court on defendants’ application for leave to appeal, indicate that defendants may have a defense of payment. They claim that when they bought out the interest in the corporate defendant of plaintiff’s cousins Mohammed and Musa Ahmed, guarantors of the subject note, Mohammed and Musa thereafter paid the balance due on the subject note to plaintiff. Under the circumstances, defendants should be permitted to present their contentions to the Civil Court on an application for reconsideration. Cohalan, Acting P. J., Damiani, Shapiro and Hawkins, JJ., concur.