Opinion
February 4, 1993
Appeal from the Supreme Court, New York County (Joan B. Lobis, J.).
In 1985, defendant executed a $110,000 promissory note in favor of plaintiff, his father-in-law. The note, due in 2015, provided for annual interest payments at the rate of nine percent and contained a clause stating that it could not be changed orally and could only be modified by an agreement in writing signed by the party to be charged. Plaintiff seeks the interest due for the years 1985 through 1991, which interest plaintiff failed to demand and which defendant claims was forgiven as a gift.
While General Obligations Law § 15-301 generally bars oral modification of an agreement which contains a merger clause, application of this section may be avoided by an executed oral modification, partial performance, or estoppel, if unequivocally referrable to the modification (Rose v Spa Realty Assocs., 42 N.Y.2d 338, 343-344). The particular facts and circumstances alleged by defendant, which include allegations of forgiveness, and plaintiff's concession that he failed to demand the interest payments over the six-year period, present issues of fact as to whether there was an oral modification of the contract (Citibank v Zibro Tire Appliance Co., 72 A.D.2d 846, 847).
Further, there is an issue as to whether plaintiff waived his entitlement to the interest sought since he failed to evince an intent to claim (Gresser v Princi, 128 A.D.2d 752, lv dismissed 70 N.Y.2d 693).
Concur — Milonas, J.P., Ross, Asch and Rubin, JJ.