Martini v. Rogers

6 A.D.3d 404, 774 N.Y.S.2d 378

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 5, 2004
• Status: Published

Opinion

In an action to foreclose a mortgage, the defendant Charles Rogers appeals from an order of the Supreme Court, Suffolk County (Lifson, J.), dated May 8, 2003, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

Ordered that the order is affirmed, with costs.

The plaintiff commenced this action to foreclose a mortgage. The defendant Charles Rogers (hereinafter the defendant) moved for summary judgment, contending that the action was barred by the six-year statute of limitations applicable to mortgage foreclosures (see CPLR 213 [4]). The plaintiff contends that the mortgage was extended for eight years by an oral modification in 1993.

Under the statute of frauds, an oral modification of a written mortgage is enforceable only when the party seeking to uphold the modification partially performs under its terms, detrimentally relies on the modification, and the partial performance is unequivocally referable to the modification (see General Obligations Law § 5-703 [4]; Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229 [1999]). The evidence submitted by the plaintiff in opposition to the defendant’s establishment of a prima facie case for summary judgment was sufficient to raise a question of fact as to whether the parties agreed to an oral modification of the mortgage (see Fairchild Warehouse Assoc, v United Bank of Kuwait, 285 AD2d 444, 445 [2001]). Therefore, the Supreme Court properly denied the motion for summary judgment. Prudenti, P.J., Smith, Goldstein and Crane, JJ., concur.