ARICI v. POMA (2020)

Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered on or about June 4, 2019, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment and to dismiss the counterclaim for indemnification, unanimously affirmed, without costs.

The court correctly determined that issues of fact exist as to whether the promissory note issued by a corporation in which defendant was a primary shareholder extinguished the debt balance of the stock purchase agreement whereby defendant had agreed to purchase plaintiff's interest in the corporation.  Nothing in the promissory note establishes that plaintiff agreed to accept the note as a novation of defendant's contractual obligations.  Nor does anything in the note establish that it is a guaranty.  The documents do not specify the nature of their relationship.  Thus, contrary to plaintiff's contention, the parol evidence rule does not apply to the issue whether the stock purchase agreement and the promissory note are distinct or mutually dependent, and the issue cannot be decided on summary judgment (see National Union Fire Ins. Co. of Pittsburgh, Pa. v. Robert Christopher Assoc., 257 A.D.2d 1, 5, 691 N.Y.S.2d 35 [1st Dept. 1999]).

Our prior decision in this case on a motion to dismiss (168 A.D.3d 411, 91 N.Y.S.3d 45 [1st Dept. 2019]) is not inconsistent with this summary judgment adjudication (see Tenzer, Greenblatt, Fallon & Kaplan v. Capri Jewelry, 128 A.D.2d 467, 513 N.Y.S.2d 157 [1st Dept. 1987]).  Nor does our prior decision permitting plaintiff's assignee to recover on the note (Scharf v. Idaho Farmers Mkt. Inc., 115 A.D.3d 500, 981 N.Y.S.2d 704 [1st Dept. 2014]) preclude these parties' disputes under the stock purchase agreement.

The court correctly declined to dismiss defendant's counterclaim for indemnification of damages arising out of tax liability that occurred before the stock purchase agreement was executed (see Feuer v. Menkes Feuer, Inc., 8 A.D.2d 294, 297–298, 187 N.Y.S.2d 116 [1st Dept. 1959]).