
    ABKCO Music & Records, Inc., Appellant, v Nathaniel Montague et al., Respondents.
    [938 NYS2d 504]
   It is uncontroverted that from 1999 to 2005 plaintiff advanced funds to defendants to aid them in cataloging á collection of African American art and memorabilia. Flaintiff asserts that the funds advanced constituted a loan, while defendants contend that the advances were intended as gifts. In support of its claim, plaintiff presented three witnesses who testified that the advances were made as loans. At the close of plaintiffs case, defendants moved for a trial order of dismissal. After the court reserved decision on the motion, defendants rested without presenting a case. The court then granted the motion to dismiss, concluding that plaintiff failed to make out a prima facie case because the testimony in support of its claim was given by interested witnesses and therefore could be discounted. We disagree.

As we understand their position on appeal, defendants acknowledge that the advances they received from plaintiff were to be repaid in the event defendants sold the art collection. In this regard, defendants state in their brief, “Since the collection has not yet been sold, no payment is due.” Defendants thus recognize that the advances were not gifts. Moreover, at trial, plaintiff introduced a letter from defendants’ accountant that referred to plaintiff as having made a loan to defendants. Defendants, on the other hand, offered no evidence of any kind, but rested at the close of plaintiffs case. Given that plaintiff established a prima facie case and defendants failed to present any countervailing evidence, plaintiff is entitled to judgment.

We note that the absence of a specified time for repayment in the parties’ oral loan agreement does not defeat plaintiffs claim. As Supreme Court recognized in denying defendants’ pretrial motion for summary judgment, where no time for repayment is specified in a loan agreement, the loan is payable immediately upon demand (see Bradford, Eldred & Cuba R.R. Co. v New York, Lake Erie & W. R.R. Co., 123 NY 316, 326-327 [1890]). Concur — Saxe, J.E, Friedman, DeGrasse, Freedman and AbdusSalaam, JJ.

The decision and order of this Court entered May 26, 2011 (84 AD3d 660 [2011]) is hereby recalled and vacated (see 2011 NY Slip Op 91067[U] [2011] [decided simultaneously herewith]).  