Allied Irish Banks, P.L.C. v. Young Men's Christian Ass'n , 961 N.Y.S.2d 920 ( 2013 )

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered April 13, 2012, which granted plaintiffs motion for summary judgment in lieu of complaint only as to liability, unanimously affirmed, with costs.

We agree with the motion court’s ruling that the parties’ interest rate swap agreement, as set forth in the agreement, constituted “an instrument for the payment of money only” (CPLR 3213). We also agree that defendant failed to raise triable issues of fact as to novation, waiver, and alleged breach of the covenant of good faith and fair dealing. Defendant also claims that plaintiff is estopped from relying on CPLR 3213 because defendant changed its position (by entering into commitments to third parties), believing—based on plaintiffs statements—that plaintiff would not enforce the strict letter of the parties’ agreement. Although defendant’s CEO stated that plaintiff’s “apparent willingness to work with us” after it defaulted on a number of payments caused it to enter into agreements with others, this claim is unsubstantiated as no evidence of separate agreements is furnished. Since the underlying agreement requires modifications to be in writing, these claims are too vague to constitute an estoppel.

Concur—Andrias, J.P, Moskowitz, Freedman, Manzanet-Daniels and Feinman, JJ.