Preferred Capital, Inc. v. PBK, Inc., 309 A.D.2d 1168 (N.Y. App. Div. 2003). · Go Syfert
Preferred Capital, Inc. v. PBK, Inc., 309 A.D.2d 1168 (N.Y. App. Div. 2003). Cases Citing This Book View Copy Cite
32 citation events (32 in the last 25 years) across 4 distinct courts.
Strongest positive: Bauman v. Bauman (nyappdiv, 2025-03-14)
Treatment trajectory · 2003 → 2026 · click a year to view as-of
2003 2014 2026
Top citers, strongest first. 22 distinct citers. How cited ↗
discussed Cited as authority (rule) Bauman v. Bauman
N.Y. App. Div. · 2025 · confidence medium
Plaintiff was not required to disprove a statute of limitations defense in order to meet her initial burden inasmuch as defendant's answer only raised that defense with respect to plaintiff's breach of contract cause of action relating to the credit card ( see generally Preferred Capital v PBK, Inc. , 309 AD2d 1168, 1168 [4th Dept 2003]).
discussed Cited as authority (rule) Hewitt v. Liverpool Central School District
N.Y. App. Div. · 2015 · confidence medium
“Although a motion for summary judgment may be opposed on the ground ‘that facts essential to justify opposition may exist but cannot be stated’ (CPLR 3212 [f]), ‘the opposing party must make an evidentiary showing supporting [that] conclusion’ ” (Preferred Capital v PBK, Inc., 309 AD2d 1168, 1169 [2003]); “[m]ere speculation ... is not sufficient to raise an issue of fact” (Newman v Regent Contr.
discussed Cited as authority (rule) Hewitt v. Liverpool Central School District
N.Y. App. Div. · 2015 · confidence medium
“Although a motion for summary judgment may be opposed on the ground ‘that facts essential to justify opposition may exist but cannot be stated’ (CPLR 3212 [f]), ‘the opposing party must make an evidentiary showing supporting [that] conclusion’ ” (Preferred Capital v PBK, Inc., 309 AD2d 1168, 1169 [2003]); “[m]ere speculation ... is not sufficient to raise an issue of fact” (Newman v Regent Contr.
discussed Cited as authority (rule) Town Board of Brighton ex rel. Town of Brighton v. West Brighton Fire Department, Inc.
N.Y. App. Div. · 2015 · confidence medium
In opposing a summary judgment motion as premature pursuant to CPLR 3212 (f), “ ‘the opposing party must make an evidentiary showing supporting [the conclusion that facts essential to justify opposition may exist but cannot then be stated, and] mere speculation or conjecture [is] insufficient’ ” (Preferred Capital v PBK, Inc., 309 AD2d 1168, 1169 [2003]).
discussed Cited as authority (rule) Town Board of Brighton ex rel. Town of Brighton v. West Brighton Fire Department, Inc.
N.Y. App. Div. · 2015 · confidence medium
In opposing a summary judgment motion as premature pursuant to CPLR 3212 (f), “ ‘the opposing party must make an evidentiary showing supporting [the conclusion that facts essential to justify opposition may exist but cannot then be stated, and] mere speculation or conjecture [is] insufficient’ ” (Preferred Capital v PBK, Inc., 309 AD2d 1168, 1169 [2003]).
discussed Cited as authority (rule) CSMC 2007-C1 OSWEGO ROAD, LLC v. KIMBROOK ROUTE 31, LLC
N.Y. App. Div. · 2014 · confidence medium
“Although a motion for summary judgment may be opposed on the ground ‘that facts essential to justify opposition may exist but cannot then be stated’ (CPLR 3212 [f]), ‘the opposing party must make an evidentiary showing supporting this conclusion, mere speculation or conjecture being insufficient’ ” (Preferred Capital v PBK, Inc., 309 AD2d 1168, 1169 [2003]), and defendants failed to make that showing.
discussed Cited as authority (rule) Resetarits Construction Corp. v. Olmsted
N.Y. App. Div. · 2014 · confidence medium
In opposing a summary judgment motion as premature pursuant to CPLR 3212 (f), “ ‘the opposing party must make an evidentiary showing supporting [the conclusion that facts essential to justify opposition may exist but cannot then be stated, and] mere speculation or conjecture [is] insufficient’ ” (Preferred Capital v PBK, Inc., 309 AD2d 1168, 1169 [2003]; see Newman v Regent Contr.
discussed Cited as authority (rule) Resetarits Construction Corp. v. Olmsted
N.Y. App. Div. · 2014 · confidence medium
In opposing a summary judgment motion as premature pursuant to CPLR 3212 (f), “ ‘the opposing party must make an evidentiary showing supporting [the conclusion that facts essential to justify opposition may exist but cannot then be stated, and] mere speculation or conjecture [is] insufficient’ ” (Preferred Capital v PBK, Inc., 309 AD2d 1168, 1169 [2003]; see Newman v Regent Contr.
discussed Cited as authority (rule) Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A. v. Navarro
unknown court · 2014 · confidence medium
Preferred Capital v PBK, Inc., 309 AD2d 1168, 1168-1169 [4th Dept 2003] [noting that defendants opposed a summary judgment motion on the basis of “an unpleaded affirmative defense of fraud and collusion”]; 23 NY Jur 2d, Contribution, Indemnity, and Subrogation § 155 [in indemnity context, noting that an indemnitor “may always set up the defense that the judgment in the prior action against the indemnitee was procured by collusion or fraud”]).
discussed Cited as authority (rule) Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A. v. Navarro
unknown court · 2014 · confidence medium
Preferred Capital v PBK, Inc., 309 AD2d 1168, 1168-1169 [4th Dept 2003] [noting that defendants opposed a summary judgment motion on the basis of “an unpleaded affirmative defense of fraud and collusion”]; 23 NY Jur 2d, Contribution, Indemnity, and Subrogation § 155 [in indemnity context, noting that an indemnitor “may always set up the defense that the judgment in the prior action against the indemnitee was procured by collusion or fraud”]).
discussed Cited as authority (rule) State Farm Fire & Casualty Co. v. Ricci
N.Y. App. Div. · 2012 · confidence medium
“Although a motion for summary judgment may be opposed on the ground ‘that facts essential to justify opposition may exist but cannot then be stated’ . . . , ‘the opposing party must make an evidentiary showing supporting [that] conclusion, mere speculation or conjecture being insufficient’ ” (Preferred Capital v PBK, Inc., 309 AD2d 1168, 1169 [2003]; see Newman v Regent Contr.
discussed Cited as authority (rule) State Farm Fire & Casualty Co. v. Ricci
N.Y. App. Div. · 2012 · confidence medium
“Although a motion for summary judgment may be opposed on the ground ‘that facts essential to justify opposition may exist but cannot then be stated’ . . . , ‘the opposing party must make an evidentiary showing supporting [that] conclusion, mere speculation or conjecture being insufficient’ ” (Preferred Capital v PBK, Inc., 309 AD2d 1168, 1169 [2003]; see Newman v Regent Contr.
discussed Cited as authority (rule) WILJEFF, LLC v. UNITED REALTY MANAGEMENT CORP.
N.Y. App. Div. · 2011 · confidence medium
“Although a [cross] motion for summary judgment may be opposed on the ground ‘that facts essential to justify opposition may exist but cannot then be stated’. . . , ‘the opposing party must make an evidentiary showing supporting [that] conclusion, mere speculation or conjecture being insufficient’ ” (Preferred Capital v PBK, Inc., 309 AD2d 1168, 1169 [2003]; see Newman v Regent Contr.
discussed Cited as authority (rule) In re Thomas
N.Y. Sur. Ct. · 2010 · confidence medium
CPLR 3212 (f) and 3211 (d) provide that if it should appear from affidavits submitted in opposition to such motion that “facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained.” The affidavit raising this issue must be from someone with personal knowledge of the facts and “must make an evidentiary showing supporting this conclusion, mere speculation or conjecture being insufficient.” (Preferred Capital v PBK, Inc., 309 AD2d 1168, 1169 [4th Dept 2003]; Mazzaferro v Barterama …
cited Cited as authority (rule) Tom L. LaMere & Associates, Inc. v. City of Syracuse Board of Education
N.Y. App. Div. · 2008 · confidence medium
That contention is based on mere speculation and thus is insufficient to defeat the motions (see Preferred Capital v PBK, Inc., 309 AD2d 1168, 1169 [2003]).
discussed Cited as authority (rule) Kosoff-Boda v. County of Wayne
N.Y. App. Div. · 2007 · confidence medium
Those accident reports lack the requisite specificity to establish that defendant was aware of a dangerous traffic condition, and the mere hope of plaintiff that further discovery might provide that specificity is insufficient to defeat defendant’s motion (see Preferred Capital v PBK, Inc., 309 AD2d 1168, 1169 [2003]).
discussed Cited as authority (rule) Unistar Leasing, Div. of United Computer Capital Corp. v. Betco, Inc.
N.Y. App. Div. · 2004 · confidence medium
“Plaintiff met its initial burden of establishing its entitlement to judgment as a matter of law by submitting the lease agreement and proof of nonpayment,” and defendants failed to raise a triable issue of fact (Preferred Capital v PBK, Inc., 309 AD2d 1168, 1168 [2003]; see Unistar Leasing Div. of United Computer Capital Corp. v Lipkin, 12 AD3d 1166 [2004]; Advanta Leasing Servs. v Laurel Way Spur Petroleum Corp., 11 AD3d 571 [2004]).
discussed Cited as authority (rule) Unistar Leasing, Div. of United Computer Capital Corp. v. Lipkin
N.Y. App. Div. · 2004 · confidence medium
“Plaintiff [and third-party defendant] met [their] initial burden of establishing [plaintiffs] entitlement to judgment as a matter of law by submitting the lease agreement and proof of nonpayment” (Preferred Capital v PBK, Inc., 309 AD2d 1168, 1168 [2003]; see Advanta Leasing Servs. v Laurel Way Spur Petroleum Corp., 11 AD3d 571 [2004]; Canon Fin.
discussed Cited as authority (rule) Scott v. Crystal Construction Corp.
N.Y. App. Div. · 2003 · confidence medium
We reject plaintiffs’ contention that defendants were precluded from relying upon that defense in opposition to plaintiffs’ motion based on their failure to plead that defense in their answers. “[A]n unpleaded affirmative defense may be invoked to defeat a motion for summary judgment” (Preferred Capital v PBK, Inc., 309 AD2d 1168, 1168 [2003]).
discussed Cited "see" Consumer Solutions REO, LLC v. Giglio
N.Y. App. Div. · 2010 · signal: see · confidence high
“Consistent with the rule . . . that a defense established by the papers is sufficient though unpleaded to warrant denial of a motion for summary judgment” (id. at 183; see Preferred Capital v PBK, Inc., 309 AD2d 1168, 1168-1169 [2003]), we agree with the court that defendants-respondents raised triable issues of fact with respect to whether plaintiff accepted payments on the mortgage after the date of the default alleged in the complaint (see generally Citicorp Mtge. v Chen, 237 AD2d 968 [1997]), and with respect to the defenses of waiver and estoppel (see generally Mahopac Natl.
discussed Cited "see" Walsh v. Aspen Square Management, Inc.
N.Y. App. Div. · 2007 · signal: see · confidence high
Plaintiffs conclusory contention that additional discovery is necessary is insufficient to defeat Clover’s motion inasmuch as plaintiff failed to make the requisite evidentiary showing “that facts essential to justify opposition may exist but cannot then be stated” (CPLR 3212 [f]; see Preferred Capital v PBK, Inc., 309 AD2d 1168, 1169 [2003]; Noonan v New York Blood Ctr., 269 AD2d 323, 324 [2000]; Mazzaferro v Barterama Corp., 218 AD2d 643 [1995]; Atomergic Chemetals Corp. v Hartford Acc. & Indem.
discussed Cited "see" Wright v. Shapiro
N.Y. App. Div. · 2005 · signal: see · confidence high
Plaintiffs contention that defendant had been held personally liable in an unrelated case, where the record contains no facts beyond the caption and the Monroe County Supreme Court index number, is insufficient to raise a triable issue of fact and is insufficient “ ‘to suggest that discovery may lead to relevant evidence’ ” (Wyllie v District Attorney of County of Kings, 2 AD3d 714, 717 [2003]; see Preferred Capital v PBK, Inc., 309 AD2d 1168, 1169 [2003]).
Retrieving the full opinion text from the archive…
Preferred Capital, Inc.
v.
PBK, Inc., Doing Business as Holland Willows
Appellate Division of the Supreme Court of the State of New York.
Oct 2, 2003.
309 A.D.2d 1168
2003 N.Y. App. Div. LEXIS 10109
Cited by 30 opinions  |  Published

Appeal from an order of Supreme Court, Erie County (Mahoney, J.), entered September 10, 2002, which denied plaintiff’s motion seeking summary judgment.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and judgment is ordered in accordance with the following memorandum: Supreme Court erred in denying plaintiff’s motion seeking summary judgment. Plaintiff commenced this action to recover payments due under a lease agreement executed by defendant PBK, Inc., doing business as Holland Willows (PBK), and guaranteed by defendant Ronald A. Pilkington, covering an ATM terminal supplied by the Credit Card Center (CCC) (see generally UCC 2-A-103 [1] [g]). The original terminal broke down shortly after PBK leased it from plaintiff, and a replacement terminal supplied by CCC also broke down, after which CCC went bankrupt.

Plaintiff met its initial burden of establishing its entitlement to judgment as a matter of law by submitting the lease agreement and proof of nonpayment (see Canon Fin. Serv. v Medico Stationery Serv., 300 AD2d 66 [2002]). The burden thus shifted to defendants to “demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for [their] failure” to do so (Zuckerman v City of New York, 49 NY2d 557, 560 [1980]). Defendants opposed the motion on the basis of an unpleaded affirmative defense of fraud and collusion involving plaintiff and CCC.

Contrary to plaintiff’s contention, an unpleaded affirmative defense may be invoked to defeat a summary judgment motion (see Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 182-183 [1982], rearg denied 57 NY2d 674 [1982];[*1169] Denburg v Parker Chapin Flattau & Klimpl, 213 AD2d 297 [1995], mod on other grounds 82 NY2d 375 [1993]; see also Allen v Matthews, 266 AD2d 782, 784 [1999]). Nevertheless, defendants’ allegations of fraud and collusion are supported by nothing more than the unsubstantiated suspicion, expressed by PilMngton in his affidavit in opposition to the motion, that CCC was running a “Pyramid Scheme” for the benefit of plaintiff. “In opposing plaintiff’s motion for summary judgment, it was incumbent upon the defendants to * * * state their version of the facts in evidentiary form. ‘Bald conclusory assertions, even if believable, are not enough’ ” (Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 NY2d 255, 259 [1970], quoting Kramer v Harris, 9 AD2d 282, 283 [1959]; see State of New York v Peerless Ins. Co., 67 NY2d 845, 848 [1986]). Furthermore, Pilkington’s unsubstantiated allegation of an agency relationship between plaintiff and CCC is belied by the express provisions of the lease agreement (see Federal Deposit Ins. Corp. v Jacobs, 185 AD2d 913 [1992]; Lejkowski v Petrou, 178 AD2d 465 [1991]; see also Zigabarra v Falk, 143 AD2d 901, 902 [1988]).

In addition, defendants’ “belief that additional discovery might reveal something helpful” in this case is insufficient to defeat plaintiff’s motion (Cooper v Milton Paper Co., 258 AD2d 614, 615 [1999]; see Ostrander v Biel’s Info. Tech. Sys. Corp., 299 AD2d 886, 887 [2002]). Although a motion for summary judgment may be opposed on the ground “that facts essential to justify opposition may exist but cannot then be stated” (CPLR 3212 [f]), “the opposing party must make an evidentiary showing supporting this conclusion, mere speculation or conjecture being insufficient” (Pank v Village of Canajoharie, 275 AD2d 508, 509 [2000]; see Firth v State of New York, 287 AD2d 771, 773 [2001], affd on other grounds 98 NY2d 365 [2002]). Defendants here failed to make the necessary evidentiary showing.

Thus, we reverse the order, grant plaintiff’s motion and order that judgment be entered in favor of plaintiff in the amount of $17,639.86 together with interest at the rate of 9% (see CPLR 5004) commencing May 27, 2001, the date of the default. Present — Pigott, Jr., P.J., Pine, Wisner and Kehoe, JJ.