Opinion
June 4, 1998
Appeal from the Supreme Court, New York County (Charles Ramos, J.).
The payee of the promissory note in question could not effect a valid novation with defendant, the obligor, because a third-party bank had a perfected security interest in, and actual possession of, the original note, as well as an agreement precluding the payee from modifying or altering the terms of the note without the bank's prior written consent, which the payee never obtained ( see, Rogers v. Thomson, 215 App. Div. 541, 544). Nevertheless, the payee subsequently, with the bank's consent, released defendant from his obligations under the note, and thus there was a valid cancellation of the note, of which circumstance plaintiff, through its principal Ivan Dochter, was aware, due to Dochter's intimate involvement in securing that release and consent.
Concur — Milonas, J. P., Wallach, Tom, Mazzarelli and Saxe, JJ.