Opinion
April 21, 1992
Appeal from the Supreme Court, New York County (Edward H. Lehner, J.).
The security agreement recited in the promissory notes gives plaintiff the option of retiring its loan to defendant by retaining commissions earned by defendant instead of accepting payment directly from him. Defendant asserts that such election was made, and that his earned commissions have been debited in an amount equal to full amount of both notes; plaintiff, by its secretary-treasurer, denies this. The security agreement requires written notice of the election, but the record is silent as to whether such written notice was given. The conflicting affidavits require denial of summary judgment.
Concur — Sullivan, J.P., Ellerin, Wallach and Rubin, JJ.