March 21, 2014
MERLE A. HARVEY AND DIANE F. HARVEY, PLAINTIFFS-APPELLANTS,
RANDY AGLE AND AMY AGLE, DEFENDANTS-RESPONDENTS.
Appeal from an order of the Supreme Court, Erie County (Joseph R. Glownia, J.), entered January 3, 2013. The order denied plaintiffs' motion for summary judgment in lieu of complaint.
LIPPES MATHIAS WEXLER FRIEDMAN LLP, BUFFALO (ADAM F. HANEY OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
TREVETT CRISTO SALZER & ANDOLINA P.C., ROCHESTER (MICHAEL F. GERACI OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND VALENTINO, JJ.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting plaintiffs' motion insofar as it sought summary judgment on the promissory note in the amount of $75, 000 and as modified the order is affirmedwithout costs.
Memorandum: Plaintiffs, as limited by their brief, contend on appeal that Supreme Court erred in denying in its entirety their motion for summary judgment in lieu of complaint pursuant to CPLR 3213 with respect to two promissory notes, and instead should have granted the motion insofar as it sought summary judgment on one of the promissory notes, in the amount of $75, 000. We agree, and we therefore modify the order accordingly. Plaintiffs met their initial burden by submitting the subject note, which contained a clause that accelerated the balance in the event that defendants defaulted, and by submitting evidence that defendants failed to make a required, biannual interest payment by the June 21, 2012 deadline (see Sandu v Sandu, 94 A.D.3d 1545, 1546; Kehoe v Abate, 62 A.D.3d 1178, 1180). In opposition thereto, defendants failed to "come forward with evidentiary proof showing the existence of a triable issue of fact with respect to a bona fide defense of the note" (Judarl v Cycletech, Inc., 246 A.D.2d 736, 737; see Ring v Jones, 13 A.D.3d 1078, 1078). Although "knowledgeable acceptance of late payments over an extended period of time... establishes the necessary elements to constitute a waiver of the right to insist upon timely payments" (Snide v Larrow, 93 A.D.2d 959, 959, affd 62 N.Y.2d 633; see Madison Ave. Leasehold, LLC v Madison Bentley Assoc. LLC, 30 A.D.3d 1, 6, affd 8 N.Y.3d 59, rearg denied 8 N.Y.3d 867), defendants established, at most, that they had made only two prior untimely payments on the subject note. Evidence that plaintiffs had routinely accepted untimely monthly payments on a second promissory note representing a separate obligation between the parties does not compel a different result.