Charco Corp. v. North American Development Corp.

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered December 14, 1989, which granted plaintiff’s motion for summary judgment in lieu of complaint, unanimously affirmed, without costs.

On December 31, 1982, the defendant’s predecessor (hereafter defendant) signed a balloon promissory note to plaintiff in the principal amount of $125,937, in connection with plaintiffs sale to defendant of a one-half interest in an apartment building. It is undisputed that since September 1987, the defendant has not made interest payments required by the note.

Defendant argued in opposition to plaintiffs motion for summary judgment that in 1987 Dr. Charles Blumenthal, plaintiffs principal, suspended defendant’s obligation to make interest payments under the note, pending a sale of the property "as quickly as possible”, at which time the full amount of the note and interest would be paid. Dr. Blumenthal died in January 1989, and plaintiff brought this action three months thereafter. Assuming that Dr. Blumenthal’s alleged oral agreement to suspend defendant’s interest obligations constituted a waiver of defendant’s obligations (see, Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175), such waiver was at best for a limited time only, and in no event could be effective three months after Dr. Blumenthal’s death. As here pertinent, the note provided that in the event of nonpayment of any installment, the whole indebtedness, including principal and interest, would become immediately due and payable at the option of the holder, and that the maker waived demand and protest of nonpayment. Accordingly, plaintiff’s motion for summary judgment in lieu of complaint was properly granted. We have considered the defendant’s other contentions and find them to be without merit. Concur — Sullivan, J. P., Carro, Wallach, Kupferman and Kassal, JJ.