Park Associates v. Crescent Park Associates, Inc.

• Decision Date: 02 March 1990
• Citation: 552 N.Y.S.2d 314,159 A.D.2d 460
• Parties: PARK ASSOCIATES, Respondent, v. CRESCENT PARK ASSOCIATES, INC., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 314

552 N.Y.S.2d 314

159 A.D.2d 460

PARK ASSOCIATES, Respondent, v. CRESCENT PARK ASSOCIATES, INC., et al., Appellants.

Supreme Court, Appellate Division,

Second Department.

March 2, 1990.

Herzfeld & Rubin, P.C., New York City (Herbert Rubin, Terry A. Myers and Charles A. Cohen of counsel), for appellants.

Rivkin, Radler, Dunne & Bayh, New York City (Simeon H. Baum and Martin Stein, of counsel), for respondent.

Before MOLLEN, P.J., and THOMPSON, LAWRENCE and EIBER, JJ.

MEMORANDUM BY THE COURT.

In an action to recover on a promissory note, the defendants appeal from (1) so much of an order of the Supreme Court, Nassau County (Lockman, J.), dated August 21, 1987, as denied their motion for summary judgment dismissing the complaint as time barred and granted the plaintiff's cross motion to strike their tenth affirmative defense of the Statute of Limitations, and (2) an order of the same court, dated December 4, 1987, which denied their motion for reargument.

ORDERED that the order dated August 21, 1987, is modified, on the law, by (1) deleting the provision thereof granting the plaintiff's cross motion to strike the tenth affirmative defense of the Statute of Limitations insofar as it is asserted on behalf of Crescent Park Associates, Inc., and Marvin Greenfield and substituting therefor a provision denying the cross motion to that extent, and (2) deleting therefrom the provision denying those branches of the defendants' motion which were for summary judgment dismissing the complaint as time barred as against the individual defendants Stuart Bittleman and Robert Salisbury and substituting therefor a provision granting those branches of the defendants' motion; as so modified, the order is affirmed, without costs or disbursements; and it is further,

ORDERED that the appeal from the order dated December 4, 1987, is dismissed, without costs or disbursements.

The plaintiff's cause of action to recover on a promissory note accrued on October 30, 1978, when the note came due. Thus, this action, commenced by service of a summons and complaint dated March 12, 1985, was not brought within the applicable six-year Statute of Limitations (CPLR 213). The dispositive issue, therefore, became whether the obligation to repay the debt was revived by a written acknowledgment of the debt (see, General Obligations Law § 17-101).

The doctrine of equitable estoppel does not serve to bar the defendants from asserting the Statute of Limitations as an affirmative defense since the plaintiff has failed to establish that the defendants induced it by fraud, misrepresentation or deception to refrain from commencing the action in timely fashion (see, General Obligations Law § 17-103[4][b]; Simcuski v. Saeli, 44 N.Y.2d 442, 448-449, 406 N.Y.S.2d 259, 377 N.E.2d 713; Thompson v. Whitestone Sav. & Loan Assn., 131 A.D.2d 749, 752, 516 N.Y.S.2d 963; Rains v. Metropolitan Transp. Auth., 120 A.D.2d 509, 501 N.Y.S.2d 709). Since the plaintiff is relying on an exception to the Statute of Limitations, it had the burden of establishing the applicability of that exception (see, Connell v. Hayden, 83 A.D.2d 30, 39, 443 N.Y.S.2d 383; Brush v. Olivo, 81 A.D.2d 852, 853, 438 N.Y.S.2d 857). To constitute an acknowledgment, a writing "must recognize an existing debt and must contain nothing inconsistent with an intention on the part of the debtor to pay it" (Morris Demolition Co. v. Board of Educ. of City of New York, 40 N.Y.2d 516, 521, 387 N.Y.S.2d 409, 355 N.E.2d 369). The writings, which were signed by the defendant Marvin Greenfield as an officer of the corporation, alternately referred to the defendants' "outstanding obligation", proposed a method of satisfying the debt by allowing the plaintiff to participate in a mortgage held by the corporate defendant, or requested that the plaintiff forgive the debt.

In opposition, the defendants claim that representatives of the plaintiff and defendant corporation had a meeting on May 19, 1980, and at that time the plaintiff agreed that it would forgive the debt in order to earn a greater profit on another transaction between the parties. Although the Supreme Court characterized as "incredible on its face" the defendants' assertion that the debt had been orally forgiven, on a motion for summary...