                          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
                              -2-                522687

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
                                -3-                  522687

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]).
