72 A.D.2d 614 | N.Y. App. Div. | 1979
Dissenting Opinion
Upon reargument, we adhere to our prior position (Bankers Trust Hudson Val., N.A. v Christie, 68 AD2d 969, 970-971), and would affirm the judgment. In our opinion, the provisions of section 15-301 of the General Obligations Law and Chemical Bank v Wasserman (37 NY2d 249), holding that a termination of a written guarantee must be communicated to the holder of the guarantee in writing, are controlling. The majority’s reliance on Rose v Spa Realty Assoc. (42 NY2d 338) is misplaced. In Rose, a written agreement for the sale and purchase of land was involved. The agreement was modified by oral agreement between the parties. The court stated (42 NY2d 338, 344): "Once a party to a written agreement has induced another’s significant and substantial reliance upon an oral modification, the first party may be estopped from invoking the statute to bar proof of that oral modification”. Here, there was
Lead Opinion
Appeal from a judgment of the Supreme Court at Special Term, entered February 16, 1978 in Ulster County, upon an order which granted plaintiff’s motion for partial summary judgment against the defendant, Gerald A. Christie, in the sum of $33,686.09. Upon reargument, we adhere to our previous decision (Bankers Trust Hudson Val., N. A. v Christie, 68 AD2d 969) holding that questions of fact are here presented which require reversal of the judgment granting plaintiff’s motion for partial summary judgment. In our view, neither subdivisions 1 and 4 of section 15-301 of the General Obligations Law nor Chemical Bank v Wasserman (37 NY2d 249) requires a contrary holding in view of the Court of Appeals application of the equitable estoppel principle in a similar context (Rose v Spa Realty Assoc., 42 NY2d 338). Judgment reversed, on the law, without costs, and motion denied. Mahoney, P. J., Greenblott and Mikoll, JJ., concur.