By: Daily Record Staff//November 20, 2023
By: Daily Record Staff//November 20, 2023//
New York State Supreme Court, Appellate Division, Fourth Judicial Department
Time-barred – Part-performance – Modification
Appealed from Supreme Court, Chautauqua County
Background: The plaintiff sought to collect on a promissory note that memorialized a loan he made to the defendant, a closely held family corporation. The plaintiff and his four brothers each held a 10% interest in the defendant, with the plaintiff’s father holding the remaining 50%. After the father died, each brother held a 20% interest. The complaint was dismissed as time-barred.
Ruling: The Appellate Division affirmed. The court noted that despite the alleged oral agreement to modify the accrual date for any actions commenced on the note, the note itself stated that modifications are not binding unless made in writing. Further, there were no disputed issues of fact over the application of the doctrine of part performance as the plaintiff failed to show that his actions in forbearing collection on the note were explainable only with reference to the purported oral modification. His submissions allow for the inference that his forbearance in collecting on the note was explainable by his self-interest as part owner of the defendant and the parties’ familial relationship.
Joseph M. Calimeri, of Wright Calimeri, for the plaintiff-appellant; David M. Civilette for the defendant-respondent.