City National Bank v. Morelli Ratner, P.C. , 9 N.Y.S.3d 579 ( 2015 )

Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered December 8, 2014, which, insofar as appealed from, denied plaintiff’s motion for summary judgment in lieu of complaint, unanimously affirmed, with costs.

Plaintiffs motion pursuant to CPLR 3213 was properly denied in this action where plaintiff seeks payment due under a note, letter of credit and guaranty. The record presents triable issues of fact as to whether the parties had entered into an oral agreement to modify the loan documents, and whether defendants’ payment of $250,000 constituted partial performance of the purported oral agreement and was “unequivocally referable to the modification,” rather than to the note (Rose v Spa Realty Assoc., 42 NY2d 338, 341 [1977]; compare Citibank, N.A. v Silverman, 85 AD3d 463, 465 [1st Dept 2011] [“defendant’s payments were not unequivocally referable to the alleged oral agreement to forbear”]).

We have considered plaintiff’s remaining arguments and find them unavailing.

Concur — Gonzalez, P.J., Mazzarelli, Acosta, Clark and Kapnick, JJ.

Motion to strike reply brief denied.