Schwartz v. Health & Pleasure Tours, Inc.

Order, Supreme Court, New York County (Carol Huff, J.), entered September 18, 1990, denying plaintiff’s motion for summary judgment, unanimously affirmed, with costs.

Although plaintiff sued defendants Health and Pleasure Tours, Inc., and Mark Handler, a shareholder and principal of the corporate defendant, he never served Handler’s estate and has relinquished any claim against it. The action arises out of plaintiff’s alleged loan to defendant of $71,700, and defendant’s refusal to make repayment upon demand. The loan transaction was entered into between plaintiff and Handler, pursuant to which Handler turned over to plaintiff four of defendant’s checks, executed and endorsed by him, but which left the payee line blank, allegedly as a convenience for plaintiff to fill in later to direct payment to a payee of his choice. On plaintiff’s motion for summary judgment, he also filed affidavits of employees of defendant who had witnessed Handler acknowledge the loan and had been directed by Handler to issue the checks to plaintiff. The defendant corporation alleged that it had no records of any deposits to its accounts in the sum of the loan allegedly made and that if there were a loan Handler had executed the notes for his own personal benefit. Plaintiff failed to establish entitlement to summary judgment, since he was neither a payee, nor indorsor/indorsee on the checks and failed to demonstrate that he had in fact made a loan to defendant. Concur — Murphy, P. J., Milonas, Ellerin, Kupferman and Rubin, JJ.