156 A.D.2d 131 | N.Y. App. Div. | 1989
Order, Supreme Court, New York County (Edward Lehner, J.), entered on or about August 15, 1988, insofar as it denied defendant’s cross motion for summary judgment, unanimously affirmed, without costs.
In this action, plaintiff seeks to recover premiums for workers’ compensation insurance for a theatrical venture conducted by the Whoopee National Company, with which it is alleged defendant Jack Warner was associated. In response to plaintiff’s motion for summary judgment, defendant Warner
The IAS court properly denied defendant’s motion for summary judgment. On the papers submitted, triable issues of fact were raised both as to defendant’s status with Whoopee and whether the part payments were sufficient to toll the Statute of Limitations. It is well settled that part payment of a debt does not, by itself, toll the Statute of Limitations, but that the burden rests upon the creditor to show that it was a payment of a portion of the admitted debt, paid to and accepted by him as such, accompanied by circumstances amounting to an absolute and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay the remainder. (Crow v Gleason, 141 NY 489; New York State Higher Educ. Servs. Corp. v Muson, 117 AD2d 947.) On this record, it cannot be determined as a matter of law whether defendant’s part payments were made under circumstances which met this standard. Concur—Kupferman, J. P., Milonas, Kassal and Ellerin, JJ.