ALP should be given the opportunity to prove that Adam's sale of the Keepers was unauthorized (seeHardin v. Morgan Lithograph Co., 247 N.Y. 332, 339, 160 N.E. 388 [1928] ). Moreover, Scharf v. Idaho Farmers Mkt., Inc., 115 A.D.3d 500, 981 N.Y.S.2d 704 (1st Dept. 2014) suggests that if the party in Park West's position actually knew that the person in Adam's position lacked authority, this would "create a factual dispute" ( id. at 501, 981 N.Y.S.2d 704 ). ALP alleges that "Park West knew ... that Adam did not have the authority to authorize [the Keepers] transaction" and alleges specific facts in support of the allegation.

ALP should be given the opportunity to prove that Adam's sale of the Keepers was unauthorized (see Hardin v Morgan Lithograph Co., 247 NY 332, 339 [1928]).Moreover, Scharf v Idaho Farmers Mkt., Inc. (115 A.D.3d 500 [1st Dept 2014]) suggests that if the party in Park West's position actually knew that the person in Adam's position lacked authority, this would "create a factual dispute" (id. at 501). ALP alleges that "Park West knew... that Adam did not have the authority to authorize [the Keepers] transaction" and alleges specific facts in support of the allegation.

Our prior decision in this case on a motion to dismiss ( 168 A.D.3d 411, 91 N.Y.S.3d 45 [1st Dept. 2019] ) is not inconsistent with this summary judgment adjudication (seeTenzer, Greenblatt, Fallon & Kaplan v. Capri Jewelry, 128 A.D.2d 467, 513 N.Y.S.2d 157 [1st Dept. 1987] ). Nor does our prior decision permitting plaintiff's assignee to recover on the note ( Scharf v. Idaho Farmers Mkt. Inc., 115 A.D.3d 500, 981 N.Y.S.2d 704 [1st Dept. 2014] ) preclude these parties' disputes under the stock purchase agreement.The court correctly declined to dismiss defendant's counterclaim for indemnification of damages arising out of tax liability that occurred before the stock purchase agreement was executed (seeFeuer v. Menkes Feuer, Inc., 8 A.D.2d 294, 297–298, 187 N.Y.S.2d 116 [1st Dept. 1959] ).

Following the corporation's default in payments, plaintiff purportedly assigned the promissory note, and the stock purchase agreement, to an attorney then representing him in criminal and tax proceedings. The attorney brought suit on the promissory note ( Scharf v. Idaho Farmers Mkt. Inc. , 115 A.D.3d 500, 981 N.Y.S.2d 704 [1st Dept. 2014] ), which he then settled. Plaintiff alleges that the assignment of the stock purchase agreement was null and void from the outset due to mutual mistake and the terms of the agreement and that in any event the agreement has been reassigned to him by the attorney.

In opposition to plaintiff's prima facie showing of its entitlement to judgment as a matter of law, defendant failed to raise a triable issue of fact (Zyskind v. FaceCake Mktg. Tech., Inc., 101 A.D.3d 550, 551, 956 N.Y.S.2d 45 [1st Dept.2012] ). We agree with plaintiff's argument that defendant, by making 60 monthly interest payments under a note, even after it was aware of plaintiff's alleged wrongdoing, ratified the note and waived any defenses of fraud, self-dealing or breach of fiduciary duty (see Scharf v. Idaho Farmers Mkt. Inc., 115 A.D.3d 500, 501–502, 981 N.Y.S.2d 704 [1st Dept.2014] ; see also Davis & Davis v. Morson, 286 A.D.2d 584, 585, 730 N.Y.S.2d 293 [1st Dept.2001] ). We may consider plaintiff's argument, which was raised during oral argument on the motion but was excluded from the parties' briefs to the motion court, because it is determinative and because the record on appeal is sufficient to permit appellate review (Facie Libre Assoc. I, LLC v. SecondMarket Holdings, Inc., 103 A.D.3d 565, 565, 961 N.Y.S.2d 44 [1st Dept.2013], lv. denied 21 N.Y.3d 866, 2013 WL 5180437 [2013] ).

To void an agreement due to its fraudulent inducement, plaintiff also must seek to rescind or repudiate the agreement promptly upon realizing the fraud. Scharf v. Idaho Farmers Mkt. Inc., 115 A.D.3d 500, 501-502 (1st Dep't 2014); Visionchina Media Inc, v. Shareholder Representative Servs., LLC, 109 A.D.3d 49, 56 (1st Dep't 2013); Allen v. Riese Org., Inc., 106 A.D.3d at 517-18; Robinson v, Day, 103 A.D.3d 584, 585 (1st Dep't 2013). See Achache v. Och, 128 A.D.3d 563, 563 (1st Dep't 2015).

Plaintiff's right to payment can be ascertained from the face of the note itself, without resorting to extrinsic documents." Scharf v. Idaho Farmers Mkt. Inc., 115 A.D.3d 500, 501 (1st Dep't 2014). In connection with an appeal of the motion to dismiss in this action, the First Department stated: "Contrary to the motion court's concern that [Arici] is seeking double recovery, we find, accepting the allegations in the complaint as true, that [Arici] is only seeking to be 'made whole' by receiving the balance of the purchase price set in the stock purchase agreement, after deducting amounts already paid by defendant and [the Market], including those received in connection with the Scharf litigation.

The argument is unpersuasive. When there are minor references and "no affirmative language making their respective payment obligations interdependent ... [p]laintiff's right to payment can be ascertained from the face of the note itself, without resorting to extrinsic documents" (Scharf v Idaho Farmers Market Inc., 115 AD3d 500, 501 [1st Dept 2014]). Thus, contrary to defendants' assertion, this dispute arises solely from the note.

Having ratified the Agreement by partly performing it and failing to repudiate it, defendants are estopped from complaining of plaintiff's post-execution insertion of the Property's particulars. (Scharf v Idaho Farmers Mkt. Inc., 115 AD3d 500 [lst Dept 2014]; Allen v Riese Org., Inc., 106 AD3d 514, 517 [1st Dept 2013]). Thus, this Affirmative Defense is dismissed.

If this contractual modification in fact took place after the discovery of the misrepresentations underlying its fraud claims, Hayground may have ratified the RSA and explicitly affirmed its validity. See e.g. Scharf v Idaho Farmers Market, Inc., 2014 WL 959096, at *1 (1st Dept Mar 13, 2014); Braddock v Braddock, 60 AD3d 84, 94-95 (1st Dept 2009) (citing Agristor Leasing-II v Pangburn, 162 AD2d 960, 961 (1st Dept 1990)). The 2005 amendment to the RSA demonstrates that Hayground does not challenge the validity of the RSA and that the jury waiver provision contained in the RSA is still applicable.