Opinion
14722 Index No. 153623/20 Case No. 2021–01896
12-02-2021
Carol KENNEY, as Executor of the Estate of Jerome Kenney, deceased, Plaintiff–Respondent, v. Eli S. JACOBS, Defendant–Appellant.
Law Offices of Cynthia A. Augello, P.C., Garden City (Cynthia A. Augello of counsel), for appellant. Carter Ledyard & Milburn LLP, New York (Stephen M. Plotnick of counsel), for respondent.
Law Offices of Cynthia A. Augello, P.C., Garden City (Cynthia A. Augello of counsel), for appellant.
Carter Ledyard & Milburn LLP, New York (Stephen M. Plotnick of counsel), for respondent.
Webber, J.P., Friedman, Oing, Shulman, Pitt, JJ.
Order, Supreme Court, New York County (Laurence L. Love, J.), entered on or about November 5, 2020, which granted plaintiff's motion for summary judgment in lieu of complaint ( CPLR 3213 ), unanimously affirmed, with costs.
Defendant failed to raise an issue of fact in opposition to plaintiff's prima facie showing that her decedent's estate is entitled to recover on a promissory note executed by the decedent and defendant (see Zyskind v. FaceCake Mktg. Tech., Inc., 101 A.D.3d 550, 956 N.Y.S.2d 45 [1st Dept. 2012] ). Defendant's sole defense is his affidavit that there was an oral modification of the promissory note pursuant to which the decedent agreed to forgo repayment of the borrowed funds. However, the affidavit is conclusory and therefore insufficient to defeat plaintiff's motion (see e.g. Poluliah v. Fidelity High Income Fund, 102 A.D.2d 720, 722, 476 N.Y.S.2d 859 [1st Dept. 1984] ). Defendant offered no additional evidence or details as to the purported oral agreement, such as its terms, the consideration given for it, or when, where, and why it was made.
Defendant's reliance on the purported oral modification is also precluded by the anti-waiver/modification provision of the promissory note (see General Obligations Law § 15–301[1] ). Defendant failed to establish that either of the limited exceptions to the statute applies (see Eujoy Realty Corp. v. Van Wagner Communications, LLC, 22 N.Y.3d 413, 425, 981 N.Y.S.2d 326, 4 N.E.3d 336 [2013] ).
We have considered defendant's remaining contentions and find them unavailing.