Plaintiff James E. Cayne ("Cayne") moves for summary judgment against defendant Alexandra Lebenthal ("Lebenthal") in this breach of contract action to recover the outstanding balance on a loan made in the principal sum of $1,000,000 (one million dollars), plus accrued interest at the applicable federal rate. Defendant opposes, asserting that the loan made was a company debt, not a personal one, and that she is not individually liable for the outstanding balance.

The proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion (Alvarez v Prospect Hospital, 68 NY2d 320). Thus, the moving party must tender sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact. Once that initial burden has been satisfied, the "burden of production" (not the burden of persuasion) shifts to the opponent, who must now go forward and [*2]produce sufficient evidence in admissible form to establish the existence of a triable issue of fact. The burden of persuasion, however, always remains where it began, i.e., with the proponent of the motion. Thus, "if the evidence [on the motion] is evenly balanced, the party that bears the burden of persuasion must lose" (Director, Office of Workers Compensation Programs v Greenwich Collieries, 512 US 267, 272; 300 East 34th Street Co. v Habeeb, 248 AD2d 50).

The court's function on a motion for summary judgment is issue finding, rather than issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223). Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied (Stone v Goodson, 8 NY2d 8; Sillman v Twentieth Century-Fox Film Corp., supra.).

In support of his motion for summary judgment, Cayne submits (1) a copy of the original $1,000,000 check request made payable to "Alexandra Lebenthal," (2) an invoice for accrued interest listing "Ms. Alexandra Lebenthal" as the borrower and (3) a check made from defendant to plaintiff reflecting payment for accrued interest.

Plaintiff here establishes a prima facie case by proof of defendant's breach of the contract. Thus, it is incumbent upon defendant to come forward with proof of evidentiary facts showing the existence of a triable issue of fact. Defendant's assertions in opposition are insufficient to meet this burden. Lebenthal claims that she and Cayne orally discussed and agreed that the one million dollar loan was to her company, making it a corporate debt and not a personal debt for which she is individually liable. In support, she attaches, as exhibits, checks made from her company to pay balances on the loan. To bolster this claim, defendant submits a copy of the promissory note with her signature affixed to the bottom noting that the address listed on the promissory note is that of the company. It is notable that no part of this document indicates that she is signing on behalf of the company or in her capacity as the company's CEO.

In looking at the four corners of all the documentary evidence, the loan was made to and signed by defendant in her personal capacity and not as a one to her business. Defendant offers no evidence to support the position that the loan was a corporate debt rather than a personal one. The language of all documents evidencing the loan are clear and unambiguous, and defendant's parol evidence that parties agreed that the loan was for the company is inadmissible to vary its terms. (See Rollo v. Glynn, 162 AD2d 145 (1990)).

Accordingly, it is

ORDERED that plaintiff's summary judgment motion, pursuant to CPLR 3212, is granted; and it is further

ORDERED and ADJUDGED that the Clerk is directed to enter judgment in favor of plaintiff and against defendant, in the amount of $438,680.69, plus interest, together with costs and disbursements as taxed by the Clerk; and it is further

ORDERED that the portion of plaintiff's action that seeks reasonable attorney's fees is severed and shall continue, and an assessment is hereby directed on the amount of reasonable attorney's fees to be awarded to plaintiff; and it is further

ORDERED that, within 30 days from entry of this order, plaintiff shall serve a copy of this order with notice of entry upon the Trial Support Clerk who is hereby directed upon filing of a note of issue and statement of readiness and the payment of proper fees to place this action on the appropriate trial calendar for the assessment hereinabove directed; and it is further

ORDERED that if plaintiff fails to comply with the immediately preceding paragraph, the claim for attorney's fees will be deemed dismissed.

This constitutes the decision and order of the court.