Spagna v. Licht
| Decision Date | 22 March 1982 |
| Citation | 87 A.D.2d 626,448 N.Y.S.2d 236 |
| Parties | Richard SPAGNA, Appellant, v. Sidney E. LICHT, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Moser & Henkin, New York City (Nathan F. Moser, New York City, of counsel), for appellant.
Herzfeld & Rubin, P.C., New York City (Charles P. Nafman, New York City, of counsel), for respondent.
Before DAMIANI, J. P., and LAZER, GIBBONS and GULOTTA, JJ.
MEMORANDUM BY THE COURT.
In an action to recover on an instrument for payment of a sum of money only, commenced by service of a summons with notice of motion for summary judgment in lieu of complaint, plaintiff appeals from an order of the Supreme Court, Kings County, entered October 9, 1981, which, inter alia, denied his motion for summary judgment.
Order affirmed, with $50 costs and disbursements.
The following facts are undisputed. In May of 1978, plaintiff loaned defendant $23,000. On November 11, 1980, defendant, in writing, acknowledged the indebtedness, stating that the amount "will be repaid as soon as circumstances permit." On June 10, 1981, plaintiff's attorney made a demand upon defendant for repayment of the loan. Defendant has failed and refused to make payment.
In June of 1981, plaintiff commenced this action by service of a summons with notice of motion for summary judgment in lieu of complaint, pursuant to CPLR 3213. He asserted, inter alia, that a reasonable time for repayment should be implied by law. In opposition defendant argued that the acknowledgment was not an instrument for the payment of money only as contemplated by CPLR 3213, since it did not contain an unconditional promise to pay, nor did it give a definite time for repayment. He asserted that any and all sums loaned to him by plaintiff Special Term agreed with defendant and denied the motion for summary judgment, finding that the time for repayment was uncertain and was an issue of fact to be determined at a trial.
Initially, we note that an agreement that a debtor shall pay when "convenient" constitutes a promise to pay within a reasonable time (see Bottum v. Moore, 13 Daly 464; Howes v. Woodruff, 21 Wend. 640). Accordingly, the assertion in defendant's affidavit that payment was due at his convenience was a judicial admission that repayment was due within a reasonable time. Moreover, at...
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