Schleifer v. Schlass

Mar 11, 2003
Versions:303 A.D.2d 204
756 N.Y.S.2d 538
2003 N.Y. App. Div. LEXIS 2391

Order, Supreme Court, New York County (Louis York, J.), entered December 11, 2001, which granted defendants’ motion for partial summary judgment and denied plaintiffs cross motion to serve a second amended complaint, unanimously affirmed, without costs.

The action, commenced in November 2000, was properly dismissed as barred by the six-year statute of limitations *205insofar as plaintiff seeks to recover upon a demand loan agreement, entered into and memorialized in 1989, and subsequent demand loan agreements, allegedly entered into orally between 1989 and 1993 (see Morgan Guar. Trust Co. v Westreich, 213 AD2d 238 [1995]; CPLR 213; UCC 3-122). Contrary to plaintiffs contention, no triable issue has been raised as to whether there were partial loan payments by defendants that revived the statutory period. Plaintiffs self-serving affidavit submitted in opposition to defendants’ motion for partial summary judgment and in support of his cross motion for leave to amend the amended complaint contradicts all of plaintiffs previous filings in this matter and is thus insufficient to raise any triable issue (see Perez v Bronx Park S. Assoc., 285 AD2d 402, 404 [2001], lv denied 97 NY2d 610 [2002]) as to whether any payments made by defendants were made under circumstances permitting the inference that such payments amounted to an absolute and unqualified acknowledgment that additional loan payments were due (see Lew Morris Demolition Co. v Board of Educ., 40 NY2d 516 [1976]).

Plaintiffs cross motion for leave to amend, relying on the same affidavit, was properly denied (see Non-Linear Trading Co. v Braddis Assoc., 243 AD2d 107, 117-118 [1998]). Concur— Saxe, J.P., Sullivan, Ellerin, Lerner and Gonzalez, JJ.