WEINER v. ABEND (2024)

Order, Supreme Court, New York County (Michael L. Katz, J.), entered on or about November 24, 2023, which, to the extent appealed from, denied plaintiff's motion for summary judgment in lieu of complaint, unanimously reversed, on the law, without costs, and the motion granted.

On her motion for summary judgment in lieu of complaint, plaintiff established a prima facie case by showing the existence of a promissory note securing $2,922,500 and proof that defendants had failed to make the payments called for under the note.

In response to plaintiff's prima facie case, defendant Randy Abend (defendant) did not raise an issue of fact as to whether the $2,922,500 was intended to be a gift to defendant and his then-wife, defendant (and nonparty to this appeal) Ruth Abend.  According to defendant's affidavit in opposition to the motion, nonparty David Rozenholc, plaintiff's husband, stated that he and plaintiff were providing the money as a gift with “no strings attached.”  However, Rozenholc was not a party to the note, and his status as plaintiff's husband was insufficient to confer on him a role as plaintiff's agent (see Four Winds Hosp. v. Keasbey, 92 A.D.2d 478, 479, 459 N.Y.S.2d 68 [1st Dept. 1983], mod. on other grounds 59 N.Y.2d 943, 466 N.Y.S.2d 300, 453 N.E.2d 529 [1983]).  In addition, defendant identified no words or conduct by plaintiff that could be construed to imbue Rozenholc with apparent authority to speak on her behalf (see Hallock v. State of New York, 64 N.Y.2d 224, 231, 485 N.Y.S.2d 510, 474 N.E.2d 1178 [1984]).  Nor did defendant furnish evidence that plaintiff had “full knowledge” of Rozenholc's purported treatment of the monies as a gift so as to raise a question of fact as to whether plaintiff ratified Rozenholc's statements that the money was intended as a gift instead of a loan (see CIT Tech. Fin. Servs. I LLC v. Bronx Westchester Med. Group, P.C., 117 A.D.3d 567, 567, 986 N.Y.S.2d 101 [1st Dept. 2014]).  Although defendant notes that plaintiff delayed almost six years after the note came due to enforce the note, “indulgence or leniency in enforcing a debt when due” does not constitute an alteration of the contract (Genger v. Genger, 123 A.D.3d 445, 446, 999 N.Y.S.2d 366 [1st Dept. 2014], lv denied 24 N.Y.3d 917, 2015 WL 753777 [2015] [internal brackets and quotation marks omitted]).

We have considered the remaining arguments and find them unavailing.