Summary
In Grant v. Marshall, 307 A.D.2d 274 (2d Dept. 2003), lv. app. den., 1 N.Y.3d 505 (2004), the Second Department addressed the timeliness of an action commenced on February 9, 1999 to recover on a demand note executed by the defendant on October 13, 1989.
Summary of this case from Elia v. PerlaOpinion
2002-09127
Submitted June 3, 2003.
July 14, 2003.
In an action to recover on a promissory note, the defendant appeals from a judgment of the Supreme Court, Nassau County (Burke, J.), entered October 3, 2002, which, after a nonjury trial, is in favor of the plaintiff and against him in the principal sum of $32,025.
John Marshall, Plainview, N.Y., appellant pro se.
Bee Ready Fishbein Hatter Donovan, LLP, Mineola, N.Y. (Thomas J. Donovan of counsel), for respondent.
Before: DAVID S. RITTER, J.P., SONDRA MILLER, GLORIA GOLDSTEIN, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with costs.
The defendant signed a demand note on October 13, 1989. The plaintiff's cause of action to recover on the note accrued on that day ( see UCC 3-122 ; Pomaro v. Quality Sheet Metal, 295 A.D.2d 416, 418). Contrary to the defendant's contentions, while this action was not commenced until February 9, 1999, it is not barred by the six-year statute of limitations ( see CPLR 213), as the defendant's partial payment on the note made in May 1995 started the statute of limitations running anew ( see Roth v. Michelson, 55 N.Y.2d 278, 281; Morris Demolition Co. v. Board of Educ. of City of N.Y., 40 N.Y.2d 516, 521). In addition, although the defendant contends that the balance due under the note was orally forgiven by the plaintiff, the note is governed by the Uniform Commercial Code, which does not permit oral cancellation ( see Matter of Goggins, 227 A.D.2d 481, 482; UCC 3-104 , 3-605). Thus, the Supreme Court properly awarded judgment in favor of the plaintiff.
The defendant's remaining contentions are without merit.
RITTER, J.P., S. MILLER, GOLDSTEIN and H. MILLER, JJ., concur.