Opinion
November 4, 1991
Appeal from the Supreme Court, Nassau County (Christ, J.).
Ordered that the judgment is affirmed insofar as appealed from, with costs.
Contrary to the contention of the defendant Alan Witzer, the Supreme Court acted properly in dismissing his affirmative defense of lack of personal jurisdiction. The affidavit of service submitted by the plaintiff constituted prima facie evidence of proper service (see, Bidetti v. Salter, 108 A.D.2d 890; Mitchell v. Mendez, 107 A.D.2d 737), and Witzer wholly failed to dispute the veracity or content of the affidavit and to allege any facts to substantiate his conclusory assertion that he was not properly served with process (see, e.g., Newman Leventhal v. Sanders, 115 A.D.2d 360; Colon v. Beekman Downtown Hosp., 111 A.D.2d 841).
Similarly unavailing is Witzer's contention that his claim of an oral modification of the parties' written lease precludes an award of summary judgment in favor of the plaintiff. Inasmuch as the lease expressly provided that it could not be orally modified, and Witzer's alleged partial performance of the oral modification was not unequivocally referable to that purported modification (see generally, Rose v. Spa Realty Assocs., 42 N.Y.2d 338, 341; Pau v. Bellavia, 145 A.D.2d 609, 610), the requirement of General Obligations Law § 15-301 (1) that the modification be written in order to be enforceable was applicable to this case. In any event, the alleged oral modification did not contain the requisite elements necessary to constitute a valid and enforceable accord and satisfaction.
Witzer further contends that the plaintiff lacks the standing and capacity to maintain this action because it is not authorized to do business in New York (see, Business Corporation Law § 1312 [a]) and because it failed to demonstrate its status as the lessor's successor in interest. However, these claims are asserted for the first time on this appeal; hence, they are not properly before us and we decline to consider them (see, Orellano v. Samples Tire Equip. Supply Corp., 110 A.D.2d 757).
Accordingly, inasmuch as Witzer did not raise any material triable issue of fact in opposition to the plaintiff's motion and failed to establish any need for further discovery, the Supreme Court acted properly in awarding partial summary judgment in favor of the plaintiff. Sullivan, J.P., Balletta, Ritter and Copertino, JJ., concur.