Community National Bank & Trust Co. v. Joseph , 504 N.Y.S.2d 185 ( 1986 )

— In an action to recover on a promissory note, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Richmond County (Felig, J.), dated October 22, 1985, as granted the cross motion of the defendants Bernard and Edith Joseph to vacate judgment of the same court, entered August 14, 1984, in favor of the plaintiff and against them.

Order affirmed insofar as appealed from, with costs.

We agree with Special Term that the plaintiff "acquiesced in the defendants’ consistent pattern of late payments”. In the absence of a provision that time was of the essence, the plaintiff was required to communicate unequivocal notice that tardy payments would not be accepted (see, Tri-Mar Contrs. v Itco Drywall, 74 AD2d 601, 602; see generally, Ballen v Potter, 251 NY 224; 76 N. Assoc. v Theil Mgt. Corp., 114 AD2d 948). Accordingly, since no such notice was sent to the Josephs, the plaintiff was not entitled to reject the payment in question (see, Tri-Mar Contrs. v Itco Drywall, supra). Therefore, Special Term properly granted the cross motion of the Josephs to vacate the judgment entered in favor of the plaintiff and against them in consequence of the purported untimely payment. Weinstein, J. P., Niehoff, Lawrence and Kooper, JJ., concur.