ZIPSER v. ZIPSER (1997)

Supreme Court, Appellate Division, Second Department, New York.

Joanne ZIPSER, etc., Appellant, v. Steven E. ZIPSER, etc., Respondent.

Decided: November 24, 1997

Before COPERTINO, J.P., and SULLIVAN, PIZZUTO and LERNER, JJ.

William R. Kutner, White Plains, for appellant. Steven E. Zipser, and Burke & Stone, New York City (William J. Burke and Robert M. Moll, of counsel), for respondent and respondent pro se (one brief filed).

In an action to recover on a promissory note and a guaranty given on another note, the plaintiff appeals from an order of the Supreme Court, Westchester County (Rudolph, J.), entered May 23, 1997, which denied her motion for summary judgment in lieu of complaint pursuant to CPLR 3213.

ORDERED that the order is affirmed, with costs.

While the plaintiff submitted proof of the promissory notes and the guaranty, and the failure to make the requisite payment (see, North Fork Bank v. Rosen, 225 A.D.2d 598, 639 N.Y.S.2d 454), the defendant raised a triable issue of fact regarding oral modification of the existing notes and guaranty. While the original documents contained clauses prohibiting oral modification, the defendant submitted evidence showing partial performance of the alleged oral agreement (see generally, Rose v. Spa Realty Assoc., 42 N.Y.2d 338, 397 N.Y.S.2d 922, 366 N.E.2d 1279).

MEMORANDUM BY THE COURT.

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