State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 1, 2016 522687 

________________________________

MAIDMAN FAMILY PARKING, LP,

Respondent,

v

WALLACE INDUSTRIES, INC., MEMORANDUM AND ORDER

et al.,

Appellants.

________________________________

Calendar Date: October 13, 2016

Before: Garry, J.P., Egan Jr., Rose and Devine, JJ.

__________

Neil T. Wallace, Williamsburg, Virginia and Coughlin &

Gerhart, LLP, Binghamton (Oliver N. Blaise III of counsel), for

appellants. 

Levene Gouldin & Thompson, LLP, Vestal (Scott R. Kurkoski

of counsel), for respondent.

__________

Devine, J.

Appeal from an order of the Supreme Court (Rumsey, J.),

entered September 18, 2015 in Tompkins County, which, among other

things, denied defendants' motion to dismiss the complaint.

Defendants Combustion Products Management, Inc., CPM

Virginia, LLC, CPM Pennsylvania LLC and CPM Golf, LLC borrowed

$155,186.46 from plaintiff and, in 2004, defendant Neil Wallace

signed a promissory note for that amount in his capacity as

president or sole member of those entities. Defendant Wallace

Industries, Inc. simultaneously borrowed $244,813.54 from

plaintiff, and Wallace, its corporate president, executed a

promissory note to that effect. The notes were secured by
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separate mortgages on real property owned by Wallace Industries

in the City of Ithaca, Tompkins County. Wallace personally

guaranteed both notes and additionally gave a guarantee on behalf

of Wallace Industries.

The notes were due and payable on June 30, 2005, and it is

undisputed that no payments were made. Despite the default,

plaintiff did not commence this action to recover the debt owed

and to foreclose upon the mortgages until July 2, 2015, well

beyond the six-year limitations period (see CPLR 213). 

Defendants filed a pre-answer motion to dismiss the complaint

alleging, among other things, that it was time-barred. Supreme

Court denied the motion in relevant part, agreeing with plaintiff

that the action was timely inasmuch as defendants recognized the

debts so as to take the "action out of the operation of the

provisions of limitations of time for commencing actions"

(General Obligations Law § 17-101). Defendants appeal, and we

now affirm.

"In order to meet the requirements of [General Obligations

Law § 17-101], a writing must be signed, recognize an existing

debt and contain nothing inconsistent with an intention on the

debtor's part to pay it" (Sitkiewicz v County of Sullivan, 256

AD2d 884, 886 [1998], appeal dismissed and lv dismissed 93 NY2d

908 [1999]; see Hon Fui Hui v East Broadway Mall, Inc., 4 NY3d

790, 791 [2005]; Lew Morris Demolition Co. v Board of Educ. of

City of N.Y., 40 NY2d 516, 521 [1976]). Here, Wallace signed an

August 26, 2010 letter in which he acknowledged the principal

amount and maturity date for each loan and, indeed, agreed to

waive any statute of limitations defense available to defendants

against "any claim [by plaintiff] to enforce collection of any

monies due [it] arising out of the" loans. This language

"clearly conveys and is consistent with an intention to pay,

which is all that need be shown in order to satisfy" the statute,

even if the phrasing implies that the sums owed by defendants

might vary from the original principal amounts (Banco do Brasil v

State of Antigua & Barbuda, 268 AD2d 75, 77 [2000]; see Chase

Manhattan Bank v Polimeni, 258 AD2d 361, 361 [1999], lv
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dismissed 93 NY2d 952 [1999]).1 A renewed statute of limitations

for plaintiff's claims accordingly began to run no earlier than

August 26, 2010 and, thus, the commencement of this action on

July 2, 2015 was timely.

Defendants' remaining contentions, to the extent that they

are not academic in light of the foregoing, have been examined

and rejected.

Garry, J.P., Egan Jr. and Rose, JJ., concur.

ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

1 The record reveals the reasons for this ambivalence as to

the amount ultimately owed by defendants, and it has nothing to

do with the validity of the original obligations. Wallace

explained in an affidavit that a third-party corporation,

controlled by the brother of plaintiff's principal, had agreed to

assume defendants' obligations but had reneged on that promise. 

Litigation ensued to enforce that promise and, while Wallace did

not attack the validity of the underlying debt, he was reluctant

to pay plaintiff if it meant letting the third-party corporation

"off the hook" for debts it had agreed to pay. Wallace did not

assert that plaintiff agreed to substitute this third-party

corporation as the debtor, however, and there is no indication

that defendants have been relieved of their original obligations

to plaintiff (see DCA Adv. v Fox Group, 2 AD3d 173, 174 [2003];

Wasserstrom v Interstate Litho Corp., 114 AD2d 952, 954-955

[1985]).