Grant v. Marshall

Appellate Division of the Supreme Court of New York

Grant v. Marshall

307 A.D.2d 274, 762 N.Y.S.2d 280, 51 U.C.C. Rep. Serv. 2d (West) 749, 2003 N.Y. App. Div. LEXIS 8225

Appellate Division of the Supreme Court of the State of New York·Decided July 14, 2003·Published·Cited by 3 cases

Opinion

In an action to recover on a promissory note, the defendant appeals from a judgment of the Supreme Court, Nassau County (Burke, J.), entered October 3, 2002, which, after a nonjury trial, is in favor of the plaintiff and against him in the principal sum of $32,025.

Ordered that the judgment is affirmed, with costs.

The defendant signed a demand note on October 13, 1989. The plaintiff’s cause of action to recover on the note accrued on that day (see UCC 3-122; Pomaro v Quality Sheet Metal, 295 AD2d 416, 418 [2002]). Contrary to the defendant’s contentions, while this action was not commenced until February 9, 1999, it is not barred by the six-year statute of limitations (see CPLR 213), as the defendant’s partial payment on the note made in May 1995 started the statute of limitations running anew (see Roth v Michelson, 55 NY2d 278, 281 [1982]; Morris Demolition Co. v Board of Educ. of City of N.Y., 40 NY2d 516, 521 [1976]). In addition, although the defendant contends that the balance due under the note was orally forgiven by the plaintiff, the note is governed by the Uniform Commercial Code, which does not permit oral cancellation (see Matter of Goggins, 227 AD2d 481, 482 [1996]; UCC 3-104, 3-605). Thus, the Supreme Court properly awarded judgment in favor of the plaintiff.

The defendant’s remaining contentions are without merit. Ritter, J.P., S. Miller, Goldstein and H. Miller, JJ., concur.

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In an action to recover on a promissory note, the defendant appeals from a judgment of the Supreme Court, Nassau County (Burke, J.), entered October 3, 2002, which, after a nonjury trial, is in favor of the plaintiff and against him in the principal sum of $32,025.

Ordered that the judgment is affirmed, with costs.

The defendant signed a demand note on October 13, 1989. The plaintiff’s cause of action to recover on the note accrued on that day (see UCC 3-122; Pomaro v Quality Sheet Metal, 295 AD2d 416, 418 [2002]). Contrary to the defendant’s contentions, while this action was not commenced until February 9, 1999, it is not barred by the six-year statute of limitations (see CPLR 213), as the defendant’s partial payment on the note made in May 1995 started the statute of limitations running anew (see Roth v Michelson, 55 NY2d 278, 281 [1982]; Morris Demolition Co. v Board of Educ. of City of N.Y., 40 NY2d 516, 521 [1976]). In addition, although the defendant contends that the balance due under the note was orally forgiven by the plaintiff, the note is governed by the Uniform Commercial Code, which does not permit oral cancellation (see Matter of Goggins, 227 AD2d 481, 482 [1996]; UCC 3-104, 3-605). Thus, the Supreme Court properly awarded judgment in favor of the plaintiff.

The defendant’s remaining contentions are without merit. Ritter, J.P., S. Miller, Goldstein and H. Miller, JJ., concur.

Grant v. Marshall, 307 A.D.2d 274, 762 N.Y.S.2d 280, 51 U.C.C. Rep. Serv. 2d (West) 749, 2003 N.Y. App. Div. LEXIS 8225 (N.Y. Ct. App. 2003).

Pincite

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Opinion

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