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Martin CARLIN, Plaintiff-Appellant, v. Stephan JEMAL, etc, et al., Defendants-Respondents.

Decided: December 29, 2009

SWEENY, J.P., BUCKLEY, DeGRASSE, FREEDMAN, ABDUS-SALAAM, JJ. Jan Ira Gellis P.C., New York (Jan Ira Gellis of counsel), for appellant. Karson & Long LLP, New York (Stephen P. Long of counsel), for respondents.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered May 28, 2009, which denied plaintiff's motion for summary judgment seeking enforcement of a promissory note made by defendants Stephan Jemal, individually, and SSJ Development, LLC, unanimously reversed, on the law, without costs, the motion granted, and the matter remanded for further proceedings, including the calculation of appropriate attorneys' fees, costs, and interest.

Regardless of whether plaintiff is a “holder in due course” (see UCC 3-302), a mere “holder” (see UCC 1-201[20] ), or only an “assignee” or “transferee” (see National Bank of N. Am. v. Flushing Natl. Bank, 72 A.D.2d 538, 539, 421 N.Y.S.2d 65 [1979]; Phoenix Global Ventures, LLC v. Phoenix Hotel Assoc., Ltd., 10 Misc.3d 1066[A], 2006 WL 20400 [Sup. Ct., N.Y. County 2006] ), he has standing to bring this action (see UCC 3-201, 3-301, 3-305, 3-306; National Fin. Co. v. Uh, 279 A.D.2d 374, 720 N.Y.S.2d 17 [2001] ). The record, including the unrefuted testimony of the original named payee of the note and of plaintiff, establishes that, at the very least, plaintiff took the note as assignee prior to commencement of the action.

Even if plaintiff is not a holder in due course, but only a holder or assignee/transferee, and thus subject to all defenses (see UCC 3-306; National Bank of N. Am., 72 A.D.2d at 539, 421 N.Y.S.2d 65), he is entitled to summary judgment, since defendants failed to raise a triable issue of fact regarding their proffered defenses.

With respect to the defense of oral modification of the repayment terms, the note contained an express provision requiring that any modification thereof be in writing to be enforceable, the integrity of which is protected by General Obligations Law § 15-301(1) (see DFI Communications v. Greenberg, 41 N.Y.2d 602, 606-607, 394 N.Y.S.2d 586, 363 N.E.2d 312 [1977] ). There is no evidence in the record of partial performance by plaintiff or defendants that is unequivocally referable to either of the two oral modifications alleged by defendants (see Rose v. Spa Realty Assoc., 42 N.Y.2d 338, 343-344, 397 N.Y.S.2d 922, 366 N.E.2d 1279 [1977]; Fairchild Warehouse Assoc. v. United Bank of Kuwait, 285 A.D.2d 444, 445, 727 N.Y.S.2d 153 [2001] ). Neither defendants' failure to pay on the due date nor plaintiff's apparent failure to demand immediate payment constitutes partial performance, because neither is unequivocally referable to the alleged oral modifications, as there may have been other explanations for such decisions (see e.g. National Westminster Bank USA v. Vannier Group, 160 A.D.2d 348, 349-350, 554 N.Y.S.2d 482 [1990] ). There is also no evidence in the record that defendants changed their position in any way or relied to their detriment on any oral modification so as to estop plaintiff from asserting the absence of a writing and enforcing the original June 1, 2007 maturity date (see id.).

The defense of lack of consideration is equally unsupported by the record. Contrary to defendants' contention, plaintiff was not required to demonstrate that there was adequate consideration for the note. Since plaintiff met his initial burden of demonstrating entitlement to recovery on the note by submitting proof of the note and defendants' default thereon, and defendants have not challenged the authenticity of their signatures on the note, the burden then shifted to defendants to demonstrate lack of consideration as a defense (see UCC 3-307[2]; DiMarco v. Bombard Car Co., Inc., 11 A.D.3d 960, 783 N.Y.S.2d 183 [2004] ). Defendants make only conclusory allegations that the loan was not fully funded, and fail to offer any evidence, documentary or otherwise, to substantiate that allegation. Moreover, their concession that at least some portion of the loan was funded defeats their defense of lack of consideration (see Laham v. Bahia Mehmet Bin Chambi, 299 A.D.2d 151, 152, 753 N.Y.S.2d 34 [2002] ), particularly where, as here, the note is “clear, complete and unambiguous” on its face and recites that it was executed for value (DiMarco, 11 A.D.3d at 961, 783 N.Y.S.2d 183 [internal quotation marks and citation omitted] ).