Wosyluk v. L.T.L. Developers, Inc. , 538 N.Y.S.2d 478 ( 1989 )

— In an action to recover on a promissory note made by the defendant L.T.L. Developers, Inc. and guaranteed by the defendant James K. Lynch, the plaintiff appeals from so much of an order of the Supreme Court, Orange County (Patsalos, J.), dated March 2, 1988, as denied that branch of his motion which was for summary judgment.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff’s papers submitted with his notice of motion consisted solely of his attorney’s affirmation, the verified pleadings, and a copy of the promissory note in question. Contrary to the plaintiff’s contention, the verified answer set forth sufficient facts in support of the defendants’ claim of lack of consideration to withstand the request for summary judgment which was, in effect, based upon the pleadings (see, Du Bosque v Munroe, 168 App Div 821). Since the plaintiff failed to establish his entitlement to judgment as a matter of law, denial of that branch of the plaintiff’s motion which was for summary judgment was warranted, despite any alleged deficiency in the defendants’ opposing papers (see, Winegrad v New York Univ. Med. Center, 64 NY2d 851).

We note that the Supreme Court’s short-form order indicates that it did not read the plaintiff’s reply papers. Since the reply papers contained new matter, which should have been included as part of the papers initially submitted by the plaintiff on his motion (see, Matter of Spofford Ave., 76 App Div 90; Poillon v Poillon, 75 App Div 536; 2 Carmody-Wait 2d, NY Prac § 8:59, at 83), we have not considered those papers on this appeal. Thompson, J. P., Lawrence, Rubin, Harwood and Balletta, JJ., concur.