Flynn v. Flynn

Ellerin, J. P.,

dissents in a memorandum as follows: Because I find that defendant met her burden of demonstrating that plaintiff’s payments in 1982 were paid and accepted as partial payment of the antecedent debt and that they were accompanied by circumstances amounting to an absolute and unqualified acknowledgement by the debtor of more being due, I would find that no portion of the within action was time barred and would remand for a further hearing.

The evidence at the hearing before the Referee in this case demonstrated that, in 1982, within the statutory period, plaintiff made certain payments to defendant over and above his current maintenance and support obligations. Plaintiff now denies that these payments were meant by the parties to be credited to his arrears or that the circumstances demonstrated an acknowledgement on his part that more money was due. However, when examined in the context of the other communications between the parties, and taking into consideration that the parties’ relationship was not a formal, business relationship but a personal one, it is clear that these payments were meant to be credited to his arrears. In plaintiff’s letter of January 29, 1981, sent with a check for current maintenance, plaintiff informed defendant, "With respect to the arrears, as I have told you I believe I will receive some assistance in the near future. At that time, I will begin reducing these past obligations.” Contrary to the majority, I find that this statement acknowledges plaintiff’s debt and contains absolutely nothing inconsistent with an intention on plaintiff’s part to pay the debt. Clearly, plaintiff’s very use of such words as "arrears” and "obligations” manifests his acknowledgement of the existence of his debt to defendant (cf, Matter of Steele, 262 App Div 938, affd 289 NY 716). Plaintiff’s separate promise that he would "begin” to pay that debt when he received the undefined "assistance” cannot reasonably be construed to imply a contrary intention never to pay the debt at all unless he received that assistance. At most, it implied only that, if the assistance were not forthcoming, he would not begin to pay the debt in the near future.

The existence of this letter is sufficient to show that the payments which were subsequently received constituted a portion of the debt which had previously been acknowledged, that the parties believed they were such, and that under the circumstances, plaintiff had unqualifiedly acknowledged that the rest was due. I therefore would find that the subsequent payments started the statute of limitations running anew. Since they were made less than six years prior to the commencement of this action, the action is timely as to the entire antecedent debt (CPLR 213 [2]). Moreover, were these circumstances in any way ambiguous as to this matter, defendant points to plaintiff’s statement of net worth filed in connection with his second divorce in 1985, in which he claimed that he owed defendant $93,000 in arrears. While the statement of net worth was not directed to defendant, plaintiff testified that he received the information regarding the total amount due from defendant. This additional proof leaves no doubt as to the validity of defendant’s claim that the partial payments were paid and received with the understanding by both parties that the rest remained due and that plaintiff persistently encouraged defendant to believe that he intended to pay her.

For these reasons, and since the Referee made no finding as to the validity of the claims for arrears that were allegedly time barred, I would remand for a finding as to the total amount of such arrears due.