CHASE MANHATTAN BANK v. POLIMENI

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

The CHASE MANHATTAN BANK, Plaintiff-Respondent, v. Vincent M. POLIMENI, et al., Defendants-Appellants.

Decided: February 18, 1999

TOM, J.P., MAZZARELLI, ANDRIAS and SAXE, JJ. David L. Birch, for Plaintiff-Respondent. Stephan Garber, for Defendants-Appellants.

Judgment, Supreme Court, New York County (Charles Ramos, J.), entered July 30, 1998, awarding plaintiff damages, and bringing up for review an order which, in an action to recover on notes and guarantees, denied defendant's motion for summary judgment and granted plaintiff's cross motion for summary judgment, unanimously affirmed, with costs.

We agree with the motion court that defendant's personal financial statement, which carried his debts to plaintiff at issue herein, constituted an “acknowledgment or promise” within the meaning of General Obligations Law § 17-101, and was sufficient to revive plaintiff's time-barred claims on those debts (see, Clarkson Co. v. Shaheen, 533 F.Supp. 905, 932).   Defendant misreads National Westminster Bank USA v. Petito, 202 A.D.2d 193, 608 N.Y.S.2d 427, in arguing that section 17-101 requires more than a mere acknowledgment of the debt and must be accompanied by a promise to pay;  that case merely holds that where the promise underlying a claimed revival of a debt is subject to a condition, such as bankruptcy court approval, there can be no revival if the condition is not met.   The record, which includes undisputed testimony that defendant had delegated to others in his company the duty of providing the updated financial information routinely required under his various loan agreements with plaintiff, establishes that defendant authorized his secretary to sign the transmittal letter covering the financial statement and to send those documents to plaintiff.

MEMORANDUM DECISION.