Richmond Plaza Associates v. Santucci , 596 N.Y.S.2d 379 ( 1993 )

—Order, Supreme Court, New York County (Harold Baer, Jr., J.), entered on or about February 21, 1992, granting plaintiffs motion, pursuant to CPLR 3213, for summary judgment in lieu of complaint, unanimously affirmed, with costs.

Defendant failed to rebut plaintiffs prima facie showing that the promissory note was valid and that defendant failed to make payment in accordance with its terms (see, Kornfeld v NRX Technologies, 93 AD2d 772, 773, affd 62 NY2d 686). Defendant’s conclusory allegation that his investment subscription was fraudulently obtained is of no avail because the alleged misrepresentation was committed by defendant’s investment advisor, not plaintiff. Also unavailing is defendant’s contention that the existence of issues of fact concerning a breach of contract by plaintiff should defeat the summary judgment motion. It is not disputed that defendant received a limited partnership interest in exchange for unconditional promises to pay money recited in the promissory notes; any subsequent breaches of fiduciary duties by plaintiff that defendant labels a "failure of consideration” are separate and distinct from the execution of the notes (see, Fopeco, Inc. v General Coatings Technologies, 107 AD2d 609). Concur — Carro, J. P., Kupferman, Kassal and Rubin, JJ.