Arthur J. Heaney, Inc. v. Gerald Modell, Inc.

Appellate Division of the Supreme Court of New York

Arthur J. Heaney, Inc. v. Gerald Modell, Inc.

180 A.D.2d 557, 580 N.Y.S.2d 1005, 1992 N.Y. App. Div. LEXIS 2716

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 25, 1992

StatusPublished

This text of 180 A.D.2d 557 (Arthur J. Heaney, Inc. v. Gerald Modell, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Arthur J. Heaney, Inc. v. Gerald Modell, Inc., 180 A.D.2d 557, 580 N.Y.S.2d 1005, 1992 N.Y. App. Div. LEXIS 2716 (N.Y. Ct. App. 1992).

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Opinion

Order, Supreme Court, New York County (Elliott Wilk, J.), dated September 4, 1991, which granted plaintiffs motion for partial summary judgment, and the judgment entered September 16, 1991 pursuant thereto in favor of plaintiff and against defendant in the amount of $44,348.22, inclusive of interest and costs, unanimously affirmed, with costs.

It is beyond cavil that leases of more than one year’s duration must be in writing (General Obligations Law § 5-703), and that instruments excluding oral modification cannot be modified orally (General Obligations Law § 15-301). Defendant has not submitted any evidentiary proof, admissible or otherwise, evincing an exception. "[It has been] repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to [558]*558require a trial of material questions of fact on which he rests his claim” (Zuckerman v City of New York, 49 NY2d 557, 562). Defendant’s purported exception to CPLR 4519 (the Dead Man’s Statute) does not rise to this level. Concur—Carro, J. P., Rosenberger, Ellerin, Kassal and Rubin, JJ.

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Order, Supreme Court, New York County (Elliott Wilk, J.), dated September 4, 1991, which granted plaintiffs motion for partial summary judgment, and the judgment entered September 16, 1991 pursuant thereto in favor of plaintiff and against defendant in the amount of $44,348.22, inclusive of interest and costs, unanimously affirmed, with costs.

It is beyond cavil that leases of more than one year’s duration must be in writing (General Obligations Law § 5-703), and that instruments excluding oral modification cannot be modified orally (General Obligations Law § 15-301). Defendant has not submitted any evidentiary proof, admissible or otherwise, evincing an exception. "[It has been] repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to [558]*558require a trial of material questions of fact on which he rests his claim” (Zuckerman v City of New York, 49 NY2d 557, 562). Defendant’s purported exception to CPLR 4519 (the Dead Man’s Statute) does not rise to this level. Concur—Carro, J. P., Rosenberger, Ellerin, Kassal and Rubin, JJ.

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Bluebook (online)

180 A.D.2d 557, 580 N.Y.S.2d 1005, 1992 N.Y. App. Div. LEXIS 2716, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arthur-j-heaney-inc-v-gerald-modell-inc-nyappdiv-1992.

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