Community National Bank & Trust Co. v. Gold

45 A.D.2d 947 | N.Y. App. Div. | 1974

Order, Supreme Court, New York County, entered March 14, 1973, denying leave to renew a prior denied motion for accelerated judgment in an action on a negotiable instrument, pursuant to CPLR 3213, reversed, on the law, without costs and without disbursements, the motion to renew granted, and upon such renewal summary judgment is granted in plaintiff’s favor. The defendant signed a promissory note payable to Michel Thorgevsky, her stepfather, now deceased. The loan funds came from the joint bank account of her mother and stepfather, although the funds derived from the mother. Defendant alleged a cancellation of the obligation by the mother, prior to her death and this later action. The original motion was properly denied because triable issues were raised. Thereafter, however, depositions established that the alleged cancellation by the mother was oral, and that the cheek for the loan was signed by the stepfather as drawer. A promissory note may not be effectively canceled by a simple oral statement. (Uniform Commercial Code, § 3-605; Bank of United States v. Manheim, 264 N. Y. 45, mot. for rearg. den. 264 N. Y. 511; Seaman-Andwall Corp. v. Wright Mach. Corp., 31 A D 2d 136.) Under the circumstances, there are no issues of fact for resolution, and so the motion to renew for accelerated judgment should now be granted. Concur—McGivern, P. J., Markewich, Kupferman and Capozzoli, JJ.; Nunez, J., dissents and votes to affirm.