Dyckman v. Barrett

• Decision Date: 16 November 1992
• Citation: Dyckman v. Barrett, 590 N.Y.S.2d 224, 187 A.D.2d 553 (N.Y. App. Div. 1992)
• Parties: Lawrence DYCKMAN, et al., Respondents, v. Maria E. BARRETT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 224

590 N.Y.S.2d 224

187 A.D.2d 553

Lawrence DYCKMAN et al., Respondents, v.Maria E. BARRETT, Appellant.

Supreme Court, Appellate Division Second Department.

Nov. 16, 1992.

Peter B. Gierer, Hauppauge, for appellant.

Anthony T. Conforti, Riverhead, for respondents.

Before SULLIVAN, J.P., and ROSENBLATT, MILLER and RITTER, JJ.

MEMORANDUM BY THE COURT.

In an action to recover on a promissory note, the defendant appeals, as limited by her brief, from (1) so much of a judgment of the Supreme Court, Suffolk County(Doyle, J.), entered October 5, 1990, as, upon an order entered August 3, 1990, granting that branch of the plaintiffs' motion which was for summary judgment on the first cause of action to recover principal and interest due on a promissory note, is in favor of the plaintiffLawrence Dyckman and against her in the principal sum of $19,717.02, and (2) so much of an order of the same court, dated December 6, 1990, as, upon renewal, adhered to the original determination.

ORDERED that the appeal from the judgment entered October 5, 1990, is dismissed, as that judgment was superseded by the order dated December 6, 1990, made upon renewal; and it is further,

ORDERED that the order dated December 6, 1990, is reversed insofar as appealed from, on the law, the first and third decretal paragraphs of the judgment entered October 5, 1990, and so much of the order entered August 3, 1990, as granted that branch of the plaintiffs' motion which was for summary judgment on the first cause of action is vacated, and that branch of the plaintiffs' motion which was for summary judgment on the first cause of action is denied; and it is further,

ORDERED that the defendant is awarded one bill of costs.

The plaintiffs commenced this action against the defendant in part, inter alia, to recover principal and interest due on a promissory note entered into by the parties in connection with the defendant's purchase from the plaintiffs of a haircutting salon.In opposition to the plaintiffs' motion for summary judgment, the defendant submitted an affidavit stating that because the plaintiffs were having financial problems, the parties agreed that the plaintiffs would accept $7,500 as full payment on the remaining amount of the note.The defendant also submitted a UCC-3 termination statement, allegedly signed by the plaintiffLawrence Dyckman.On renewal of the motion for summary judgment, the defendant additionally submitted newly available evidence, to wit, the affidavit of an eyewitness who stated that on the day in question he accompanied the defendant to a parking lot where he observed a large envelope filled with cash exchanged between the plaintiffLawrence Dyckman and the defendant.

The defendant, on renewal of the motion for summary judgment, produced evidentiary proof in admissible form sufficient to require a trial of material issues of fact (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).The burden of a court in deciding a motion for summary judgment is not to resolve issues of fact or to determine matters of credibility, but merely to determine whether such issues exist (see, Barr v. County of Albany, 50 N.Y.2d 247, 254, 428 N.Y.S.2d 665, 406 N.E.2d 481).

Although the modification of the underlying obligation on the note could not be characterized as an "accord and satisfaction" since the claim was undisputed and liquidated (see, Merrill Lynch Realty/Carll Burr, Inc. v. Skinner, 63 N.Y.2d 590, 596, 483 N.Y.S.2d 979, 473 N.E.2d 229;Ross v. Mail Order...