NAB Asset Venture III L.P. v. Stanley Simon Diamonds, Inc.

236 A.D.2d 291, 653 N.Y.S.2d 350, 1997 N.Y. App. Div. LEXIS 1419

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 1997
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Walter Schackman, J.), entered December 15,1995, in favor of plaintiff and against defendants, and bringing up for review an order granting plaintiff’s motion for summary judgment in lieu of complaint, unanimously affirmed, with costs.

Defendants’ opposition failed to establish the existence of any issues of fact with respect to their defense that their obligations under the promissory note were discharged pursuant to UCC 3-407 by virtue of a material alteration thereof, namely plaintiff’s unilateral insertion of an interest rate stated to be l1/2% over prime and of a prime rate stated to be 7% on the date of execution. The three other promissory notes issued by defendants to plaintiff’s predecessor in the same year as the subject note, all bearing an interest rate of 1% over a prime rate stated to be 7.5% on the date of execution, together with defendants’ failure to explain why the parties might have intended the subject note to have a lower interest rate than the other three, support the IAS Court’s finding that the alleged alteration was neither material nor fraudulent (see, Davis Auction House v Ontario Natl. Bank, 201 AD2d 878, 879).

We have considered defendants’ other claims and find them to be to be without merit. Concur—Milonas, J. P., Rosenberger, Wallach and Nardelli, JJ.