Defendant appeals from an order of the Civil Court, New York County (Matthew F. Cooper, J.), entered August 26, 2004, which granted plaintiff's motion for summary judgment.

PER CURIAM:

Appeal from order (Matthew F. Cooper, J.), entered August 26, 2004, is deemed an appeal from a judgment (same court and Judge), entered October 15, 2004, and so considered, judgment affirmed, without costs.

Summary judgment was properly granted in this action for collection of monies due under promissory notes, where defendant did not contest executing the notes, receiving the funds and defaulting in payment of interest due under the notes. Defendant asserts that the terms of the notes were modified by subsequent oral agreement of the parties, whereby plaintiff agreed to receive shares of stock issued by defendant in lieu of defendant's cash payment of interest on the notes. Under Delaware law, which controls enforcement of the notes, a party asserting such modification bears the burden of proving the intended change with "specificity and directness" (913 N. Mkt. St. Partnership v Davis, 1998 WL 986007 *4, 1998 Del LEXIS 493 *4 [Del, Dec. 23, 1998], quoting Reeder v Sanford School, 397 A2d 139, 141 [Del 1979]). Here, the documentary evidence relied upon by plaintiff conclusively establishes that no waiver of interest payments was effectuated.
Defendant's conclusory and unsubstantiated allegations were insufficient to create a triable issue of fact.

Furthermore, defendant cannot invoke the defense of accord and satisfaction because its obligation as to the amount of interest due under the notes was not disputed or unliquidated (see generally Wilmington Stevedores v Steel Suppliers, 511 A2d 2 [Del 1986]). We note that the same result would be reached under New York law (see Ber v Johnson, 163 AD2d 817 [1990]).

This constitutes the decision and order of the court.
I concur I concur I concur [*2]
Decision Date: September 20, 2006