Opinion
February 7, 1994
Appeal from the Supreme Court, Suffolk County (Jones, J.).
Ordered that the order is reversed, on the law, with costs, the motion is granted, the defendants' affirmative defenses and counterclaims are dismissed, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing on the reasonableness of the attorneys' fees owed to the plaintiff under the promissory notes and guarantees which are the subject of the action.
Contrary to the finding of the Supreme Court, there were no triable issues of fact which warranted the denial of the plaintiff's motion for summary judgment. The plaintiff clearly stated valid causes of action and established personal jurisdiction and proper venue. Moreover, by proof of the existence of the notes, the guarantees, and the default in payment thereof, the plaintiff demonstrated its right to summary judgment against all of the defendants (see, Curwil Constr. Corp. v. RHP Dev. Corp., 194 A.D.2d 514). To the extent that the defendants relied upon prior or contemporaneous negotiations with the plaintiff at the time of the execution of the notes and guarantees in order to vary the terms of those documents, such assertions violated the parol evidence rule (see, Benderson Dev. Co. v. Hallaway Props., 67 N.Y.2d 963; Citibank v. Plapinger, 66 N.Y.2d 90, 94-95; Braten v. Bankers Trust Co., 60 N.Y.2d 155, 162; Marine Midland Bank-S. v. Thurlow, 53 N.Y.2d 381, 387; Bank of N Y v. Kranis, 189 A.D.2d 741). The defendants' assertion that the plaintiff orally agreed to accept certain collateral in lieu of taking any action on the notes and the guarantees is inconsistent with the plain terms of the notes, the guarantees, and a December 6, 1990, letter which was executed by the defendants Marshall Bernstein and Richard Gershman. Moreover, such an alleged agreement must be in writing since the Statute of Frauds precludes any oral executory modification of the notes and guarantees (see, General Obligations Law § 15-301; Ber v Johnson, 163 A.D.2d 817, 818; Bank Leumi Trust Co. v. D'Evori Intl., 163 A.D.2d 26, 30). The record does not contain any evidence of part performance which would remove the alleged oral agreement from the Statute of Frauds. In addition, because the defendants expressly waived their right to interpose counterclaims in this action, the counterclaims should have been dismissed as a matter of law (see, Extebank v. Marco Group, 194 A.D.2d 516). The allegation that the plaintiff utilized some funds which belonged to a third party when exercising its right of offset is not a defense to this action, and in any event, the defendants lacked standing to raise this issue (see, Delaware Hudson Co. v. Mechanicville Fort Edward R.R. Co., 268 N.Y. 394, 399; Eastman Kodak Co. v. GAF Corp., 71 A.D.2d 833; Neubauer v Smith, 40 A.D.2d 790).
In light of the fact that the promissory notes and guarantees grant the plaintiff a right to recover attorneys' fees, we remit the matter to the Supreme Court for an inquest on the reasonableness of such fees. Mangano, P.J., Balletta, Santucci and Hart, JJ., concur.