CITY NATIONAL BANK v. MORELLI RATNER (2019)

Order, Supreme Court, New York County (Andrea Masley, J.), entered February 20, 2018, which, insofar as appealed from as limited by the briefs, granted plaintiff's motion for summary judgment, unanimously affirmed, with costs.

Plaintiff seeks to collect the outstanding balance of a loan. Defendants do not dispute the existence of the loan or that it has not been fully paid, but claim that its terms were altered by a subsequent oral modification agreement.

The record is clear that the parties were never truly in agreement on the terms of such a modification (see Silber v. New York Life Ins. Co., 92 A.D.3d 436, 439–440, 938 N.Y.S.2d 46 [1st Dept. 2012] ). Contrary to defendants' contention, the terms in dispute were not merely ancillary or immaterial (see generally Matter of Express Indus. & Term. Corp. v. New York State Dept. of Transp., 93 N.Y.2d 584, 589–591, 693 N.Y.S.2d 857, 715 N.E.2d 1050 [1999] ).

Even if the parties had come to an oral agreement, it would be void under the statute of frauds because it was not capable of being fully performed within one year (see General Obligations Law § 5–701[a][1]; D & N Boening v. Kirsch Beverages, 63 N.Y.2d 449, 454, 483 N.Y.S.2d 164, 472 N.E.2d 992 [1984] ). By defendants' own admission, the agreement was for a period of between 2 and 3 years—notwithstanding their intention to pay the loan off sooner (see Marcus v. C.I.F. Inc., 26 A.D.2d 923, 274 N.Y.S.2d 713 [1st Dept. 1966] ). The failure to reduce the agreement to writing may not be excused by defendants' alleged partial performance thereof, as this Court has definitively held that the partial performance exception does not apply to GOL § 5–701—the provision at issue here (see Gural v. Drasner, 114 A.D.3d 25, 29–32, 977 N.Y.S.2d 218 [1st Dept. 2013], lv dismissed 24 NY3d 935, 993 N.Y.S.2d 546, 17 N.E.3d 1144 [2014] ).

The motion court did not err in considering plaintiff's summary judgment motion, notwithstanding that it had previously moved for summary judgment in lieu of a complaint, because the motion was supported by at least some new evidence and “the policy against multiple summary judgment motions has no application where, as here, the first motion, made before discovery, is denied on the ground of the existence of a factual issue which, through later uncovering of the facts, is resolved or eliminated” (Freeze Right Refrig. & A.C. Servs. v. City of New York, 101 A.D.2d 175, 180–181, 475 N.Y.S.2d 383 [1st Dept. 1984]; see Jones ex rel. Cline v. 636 Holding Corp., 73 A.D.3d 409, 409, 899 N.Y.S.2d 605 [1st Dept. 2010] ).

We find defendants' affirmative defenses to be unavailing.