85 A.D.2d 855 | N.Y. App. Div. | 1981
Appeal from an order of the Supreme Court at Special Term (Weiss, J.), entered December 29, 1980 in Albany County, which denied defendants’ motion for summary judgment. The present action is based on fraud allegedly commited by defendants on April 8, 1968 by altering the provisions of a contract entered into between Western Pile Company, Inc. (Western Pile) and the joint venture of Depot Construction Corporation —• Barnaby Concrete Corporation (Depot — Barnaby) on August 29,1966. Plaintiff was appointed received of Glenmont Equipment Company, Inc. (Glenmont), a 50% shareholder of Western Pile, in November of 1972. The instant action was instituted in February, 1980. Special Term denied defendants’ motion for summary judgment on the ground that defendants were equitably estopped from asserting the defense of the Statute of Limitations because of a general waiver of the Statute of Limitations executed in May of 1977. This appeal ensued. Defendants contend that the alleged waiver agreement, as evidenced by a letter dated May 4, 1977 signed by the president of Depot Construction Corporation, did not contemplate any action on the contract in question and that the Statute of Limitations had already run at the time the letter was written. Plaintiff, on the other hand, maintains that the language of the letter is an explicit, unambiguous promise not to raise the defense of the Statute of Limitations. The pertinent portion of the letter reads as follows: “that all of Glenmont’s rights against it with reference to their mutual interest in Western Pile, Inc., a corporation in which Depot and Glenmont are equal shareholders, are reserved, and upon presentation by Glenmont, or me as its Receiver, of proper proof of any obligation by Depot to Western Pile or