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      Barry Levien, respondent, v Richard Allen, et al.,

appellants.  (Index No. 5282/05)



2007-00274



SUPREME COURT  OF NEW YORK, APPELLATE DIVISION, SECOND

DEPARTMENT



2008 NY Slip  Op 5486; 52 A.D.3d 578; 860 N.Y.S.2d 174; 2008

N.Y. App.  Div. LEXIS 5409





June 10, 2008,  Decided



NOTICE:



THE LEXIS PAGINATION OF THIS  DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF

THE FINAL PUBLISHED VERSION.  THIS OPINION IS UNCORRECTED AND SUBJECT TO

REVISION BEFORE  PUBLICATION IN THE OFFICIAL REPORTS.



COUNSEL: Rafael Declet, New York,  N.Y. (Gilbert Azafrani, pro hac vice, of

counsel), for  appellants.



Kirschenbaum & Kirschenbaum, P.C., Garden City, N.Y.  (Kenneth Kirschenbaum 

and

Paul J. Tramontano of counsel), for  respondent.



JUDGES: ROBERT A. SPOLZINO, J.P., JOSEPH COVELLO, THOMAS A.  DICKERSON, 

RANDALL

T. ENG, JJ. SPOLZINO, J.P., COVELLO, DICKERSON and ENG,  JJ., concur.



OPINION



DECISION &  ORDER



In an action to recover on three promissory  notes, the defendants appeal from

a judgment of the Supreme Court, Nassau  County (Bucaria, J.), entered 

November

9, 2006, which, upon a decision of the  same court dated October 2, 2006, made

after a nonjury trial, is in favor of  the plaintiff and against them in the

principal sum of $  426,865.14.



ORDERED that the judgment is affirmed, with  costs.



The Supreme Court properly awarded judgment to  the plaintiff. The plaintiff

established a prima facie case by submitting  proof of the existence of the 

three

promissory notes and the defendants'  default on each note (see Lorenz

Diversified Corp. v Falk, 44 AD3d 910, 844  N.Y.S.2d 370; Marinis v Scherr, 

306

AD2d 448, 761 N.Y.S.2d 305). The  defendants failed to controvert the evidence

presented by the plaintiff (see  Lorenz Diversified Corp. v Falk, 44 AD3d 910,

844 N.Y.S.2d 370). Furthermore,  the defendants failed to establish the

affirmative defenses of lack of  consideration (see Anand v Wilson, 32 AD3d 

808,

809, 821 N.Y.S.2d 130; see  generally Mencher v Weiss, 306 NY 1, 8, 114 N.E.2d

177) or usury (cf. Hicki v  Choice Cap. Corp., 264 AD2d 710, 711, 694 N.Y.S.2d

750). The defendants also  failed to establish that the plaintiff converted 

the

loans to a capital  contribution (cf. Security Mut. Life Ins. Co. v Member

Servs., Inc., 46 AD3d  1077, 1078, 848 N.Y.S.2d 389; J.L.B. Equities v Mind 

Over

Money, Ltd., 261  AD2d 510, 691 N.Y.S.2d 65).



The defendants' remaining  contentions are either improperly raised for the

first time on appeal or  without merit.



SPOLZINO, J.P., COVELLO, DICKERSON and  ENG, JJ., concur.