B.R.I. Coverage Corp. v. Imperial ( 1992 )

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered on or about August 9, 1991, which denied plaintiff’s motion pursuant to CPLR 3213 for summary judgment in lieu of complaint, unanimously affirmed, without costs.

The security agreement recited in the promissory notes gives plaintiff the option of retiring its loan to defendant by retaining commissions earned by defendant instead of accepting payment directly from him. Defendant asserts that such election was made, and that his earned commissions have been debited in an amount equal to full amount of both notes; plaintiff, by its secretary-treasurer, denies this. The security agreement requires written notice of the election, but the record is silent as to whether such written notice was given. The conflicting affidavits require denial of summary judgment. Concur — Sullivan, J. P., Ellerin, Wallach and Rubin, JJ.