Cohoes Loan Corp. v. Pettigrew

98 Misc. 2d 422, 413 N.Y.S.2d 884, 1979 N.Y. Misc. LEXIS 2090

• Court: New York County Courts
• Decided: March 2, 1979
• Status: Published

Opinion

OPINION OF THE COURT

Loren N. Brown, J.

By notice of motion dated January 19, 1979, and supporting affidavit, dated January 23, 1979, the plaintiff moves for summary judgment.

The defendant opposes summary judgment by affidavit, dated February 5, 1979, which contained a request for dismissal of the complaint.

On June 7, 1968, the plaintiff lent the defendant the sum of $800, and contemporaneously received from the defendant a promissory note for that amount plus interest. Subsequently, the defendant made periodic payments totaling $680.54, the last two being April 1, 1976 and September 1, 1976. It is undisputed that this debt was discharged in bankruptcy on October 1, 1975, but it is claimed by the plaintiff that the original obligation has been renewed by subsequent promises to pay, and by the two payments on the debt after the date of bankruptcy.

The issue before the court is not whether there is a question of fact, but whether the extinguished debt has been renewed by promise or partial payment. If not, the complaint must be dismissed.

Subdivision a of section 5-701 of the General Obligations Law requires a new promise to pay a debt discharged in bankruptcy to be in writing and subscribed by the party to be charged. The plaintiff here alleges merely oral promises from the defendant to repay the debt which are clearly inadequate. Reliance on the two payments made subsequent to the date of bankruptcy is equally unavailing. (Lawrence v Harrington, 122 NY 408.)

Therefore, the court finds that this obligation, discharged in bankruptcy, was not renewed by either the alleged oral promises or by partial payment subsequent to the bankruptcy, and grants the defendant’s request for dismissal of the complaint.