City Natl. Bank v Morelli Ratner, P.C.

City Natl. Bank v Morelli Ratner, P.C. 2015 NY Slip Op 04721 Decided on June 4, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 4, 2015
Gonzalez, P.J., Mazzarelli, Acosta, Clark, Kapnick, JJ.
15332 158388/14

[*1] City National Bank, Plaintiff-Appellant,

v

Morelli Ratner, P.C., et al., Defendants-Respondents.

Gibson, Dunn & Crutcher LLP, New York (Robert L. Weigel of counsel), for appellant.

Kasowitz, Benson, Torres & Friedman LLP, New York (Marc E. Kasowitz of counsel), for respondents.

Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered December 8, 2014, which, insofar as appealed from, denied plaintiff's motion for summary judgment in lieu of complaint, unanimously affirmed, with costs.

Plaintiff's motion pursuant to CPLR 3213 was properly denied in this action where plaintiff seeks payment due under a note, letter of credit and guaranty. The record presents triable issues of fact as to whether the parties had entered into an oral agreement to modify the loan documents, and whether defendants' payment of $250,000 constituted partial performance of the purported oral agreement and was "unequivocally referable to the modification," rather than to the note (Rose v Spa Realty Assoc., 42 NY2d 338, 341 [1977]; compare Citibank, N.A. v Silverman, 85 AD3d 463, 465 [1st Dept 2011] ["defendant's payments were not unequivocally referable to the alleged oral agreement to forbear"]).

We have considered plaintiff's remaining arguments and find them unavailing.

M-1399 - City National Bank v Ratner

Motion to strike reply brief denied.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 4, 2015

CLERK