Pursuant to CPLR 3212, Plaintiff, Alphonso Benacquista ("Benacquista"), moves for summary judgment based upon breach of a promissory note, in the amount of $290,000.00, executed by Defendant, John Ferrantello ("Ferrantello"), on July 3, 2003. Plaintiff also seeks to dismiss Defendant's second counterclaim for defamation.

On July 3, 2003, Ferrantello executed a promissory note, in the amount of $290,000.00, for the benefit of Benacquista. (Benacquista Affidavit Exhibit C). According to the terms of the note, Ferrantello was to repay the principal amount of the note to Benacquista by August 1, 2004. The interest rate was set at 5% per annum and interest payments were to be made to Benacquista on the "1st of each month" in installments of $1,210.00. The principal amount of the loan has not been repaid.

Ferrantello contends that the terms contained in the promissory note were amended when the parties agreed to suspend the repayment of the face value of the note until Ferrantello sold two properties he owns located at 1637 and 1639 Gilford Avenue, New Hyde Park, New York. According to Ferrantello, the Town of North Hempstead's Building Department has yet to issue certificates of occupancy for the New Hyde Park properties which has prohibited their sale. In the interim, Ferrantello alleges that he has made monthly interest payments to Plaintiff from August 2003 to the present. As evidence of these payments, Ferrantello annexed as an exhibit to his opposition to Plaintiff's motion a six page document to which he refers as "Memorandum of Monthly Interest Payments." On the top of the first page of this document, in handwriting, it states "I Alphonso Benaquista [sic] received interest payment on:" (Ferrantello Affidavit Exhibit B). Underneath that statement are a series of dates, beginning with August 1, 2003, with the payment number and the amount $1210.00 indicated next to it, and a signature purporting to be that of Plaintiff. The remainder of the pages includes similar entries for payments of $1,210.00, with the final entry dated February 5, 2007.^[FN1] Ferrantello also maintains that, prior to this suit, Benacquista accepted the monthly interest payments without objection. Ferrantello also submits for consideration a Newsday article entitled "North Hempstead Cutting Permit Backlogs", dated November 15, 2007.

According to Benacquista, he never agreed to modify the terms of the agreement or waived Ferrantello's obligations pursuant to the note. Benacquista alleges that he demanded payment on the note, although no particulars of such demands are provided, and that Ferrantello has failed to repay the loan.

Benacquista commenced this action by filing a summons and verified complaint, dated June, 27, 2007, alleging three causes of action. The first cause of action seeks judgment based upon Defendant's breach of his obligations pursuant to the terms of the note.The second cause of action seeks damages for unjust enrichment on the part of [*3]Defendant. The third cause of action seeks legal fees. The first two causes of action seek

damages in the amount of the face amount of the note plus statutory interest beginning August 2004.

Issue was joined on or about September 21, 2007 when Defendant answered the verified complaint and interposed two counterclaims sounding in quantum meruit and defamation. No reply appears to have been interposed to the counterclaims.

Plaintiff thereafter brought the instant motion seeking judgment on his first cause of action and dismissal of Defendant's counterclaim for defamation.

DISCUSSION

Summary judgment is a drastic remedy only to be granted when the movant proves that there are no issues of fact to be tried. Andre v. Pomeroy, 35 NY2d 361 (1974); and Kolivas v. Kirchoff, 14 AD3d 493 (2nd Dept. 2005). It is the procedural equivalent of a trial. Capelin Assoc. v. Globe Mfg. Corp., 34 NY2d 338, 341 (1974). Consequently, the court must view the evidence in a light most favorable to the non-moving party and afford that party all of the favorable inferences which can be drawn from the evidence presented to the court. Negri v. Stop & Shop, 65 NY2d 625 (1985). However, in opposing a summary judgment motion, the opponent must produce sufficient proof to require a trial of material questions of fact. Alvarez v. Prospect Hosp., 68 NY2d 320 (1986). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to defeat a motion for summary judgment.

Zuckerman v. City of New York, 49 NY2d 557 (1980); and Barclays Bank of New York v. Sokol, 128 AD2d 492, 512 NYS2d 419 (2nd Dept. 1987).

In analyzing a summary judgment motion, the court's role is to determine if issues of fact exist. Matter of Suffolk County Dept. of Social Servs. v. James M., 83 NY2d 178 (1994). If there is any concern about the existence of a triable issue of fact, the court must deny the motion. Freese v. Schwartz, 203 AD2d 513 (2nd Dept. 1994).

A.First Cause of Action - Promissory Note

To establish prima facie entitlement to judgment as a matter of law with respect to a promissory note, a plaintiff must show: (1) the existence of a promissory note executed by the defendant containing an unequivocal and unconditional obligation to repay and (2) the failure by defendant to pay in accordance with the note's terms. Constructamax, Inc. v. CBA Assocs., Inc., 294 AD2d 460 (2nd Dept. 2002); Colonial Commercial Corp. v. Breskel Assocs., 238 AD2d 539 (2nd Dept. 1997); and Davis v. Lanteri, 307 AD2d 947 (2nd Dept. 2003). Once plaintiff has submitted evidence establishing these two elements, the burden shifts to the defendant. The defendant must then submit evidence establishing the existence of a triable issue with respect to a bona fide defense.Colonial Commercial Corp. v. Breskel Assocs., supra ; Famolaro v. [*4]Crest Offset, Inc., 24 AD3d 604 (2nd Dept. 2005); and Silber v. Muschel, 190 AD2d 727 (2nd Dept. 1993).

In accordance with the Statute of Frauds, any agreement which consists of terms which will not be performed within one year must be in writing. General Obligations Law §5-701(a)(1). Notwithstanding the Statue of Frauds, oral directions or the conduct of the parties may modify or eliminate contractual provisions. Recon Car Corp. of New York v. Chrysler Corp., 130 AD2d 725, 729 (2nd Dept. 1987); Chase v. Skoy, 146 AD2d 563, 564 (2nd Dept. 1989); and Barsotti's Inc. v. Consolidated Edison, Co. of NY, 254 AD2d 211 (1st Dept. 1988). The statutory requirement of a writing may be avoided through partial performance of an oral modification of a contract. Rose v. Spa Realty Assocs., 42 NY2d 338, 342 (1977).

With respect to the partial performance exception, the essential element is not that the modification was partially performed but, rather, that the partial performance is unequivocally referable to the oral agreement to modify. Id. at 345. See also, Klein v. Klein, 79 NY2d 876 (1992); and Daniel Perla Assocs. v. 101 Kent Assocs., Inc., 40 AD3d 677 (2nd Dept. 2007). It is not sufficient that the oral modification gives significance to the actions of the person claiming partial performance. Anostario v. Vicinanzo, 59 NY2d 662 (1983). The actions alone must be unintelligible without reference to the oral agreement. Id. Where a triable issue of fact exists as to whether or not partial performance refers to a modification, dismissal as a matter of law is improper. Spodek v. Riskin, 150 AD2d 358 (2nd Dept. 1989).

In support of his motion, Benacquista submits a copy of the promissory note signed by Ferrantello before a notary public. He also includes copies of both sides of a cancelled Astoria Federal Savings bank check, in the amount of $290,000.00 made payable to John P. Ferrantello, which Plaintiff tendered to Defendant in consideration of the note. The back of the check indicates that the funds were deposited by Ferrantello into a North Fork Bank account. Benacquista asserts that, despite his demands for payment Ferrantello failed to pay the principal amount of the note on August 1, 2004. Ferrantello's own affidavit acknowledges that he failed to pay the principal amount of the note on the date that it matured. As such, Plaintiff has made a prima facie showing of entitlement of judgment as a matter of law on the promissory note. Therefore, the burden now shifts to Ferrantello to establish a triable issue of fact of a bona fide defense. See, Federal Deposit Ins. Corp. v. Jacobs, 185 AD2d 913 (2nd Dept. 1992).

In opposition to the motion, Ferrantello argues that the oral modification of the note is proper under General Obligations Law §15-301(1) since the provisions of the note do not prohibit such modifications. While the language of the note does not prohibit oral modifications, the modification is still subject to the Statute of Frauds given that Defendant seeks to indefinitely extend the maturity date of the note. The maturity [*5]date of the promissory note is a material term to the agreement. Pursuant to Defendant 's proposed oral modification of the terms, there is no maturity date. Ferrantello suggests that the maturity date is a term contingent upon the sale of two homes, which may never occur.

In order to overcome the writing requirement of the Statute of Frauds, Defendant contends that summary judgment should be denied based on the partial performance exception to the statute. General Obligation Law §5-703(4). The exception of partial performance requires that the performance be unequivocally referable to the modification to avoid the statutory requirement of a writing. Rose v. Spa Realty, supra . As proof of his partial performance, Defendant submits the "Memorandum of Monthly Interest Payments" purporting to show ongoing interest payments made to Plaintiff until February 2007, four months before this action was filed. Ferrantello claims that he has continued to make the interest payments beyond the February 2007 payment. However, the document he submitted in support of his allegations does not corroborate this claim as the last payment noted was in February 2007. No other evidence, such as cancelled checks, has been produced to the Court to support Defendant's claim that interest payments were made to Plaintiff.

Regardless of when Defendant continued to make interest payments, there is no evidence to demonstrate that the continued payment of $1,210.00 per month past July 1, 2004, even to the present time, is unequivocally referable to the modification of the maturity date of the promissory note from August 1, 2004 to an unascertainable date when title passes on the New Hyde Park properties owned by Ferrantello. In short, the evidence of partial performance, Defendant's payment of interest due and owing pursuant to the terms set forth in the note and Plaintiff's acceptance of these funds, is insufficient to distinctly tie the actions of Ferrantello to the alleged oral modification of the note. Defendant cannot avoid summary judgment based upon his opposition to the motion.

Consequently, summary judgment must be granted to Plaintiff on his claim for breach of the promissory note. It is unclear whether Defendant is entitled to credit for any purported payments he made after the maturity of the note. Thus, this matter must be referred to the Special Referee to ascertain the exact amount due to Plaintiff with interest at the statutory rate after the note's due date giving credit to the Defendant for any amount made to Plaintiff thereafter.

B.Defamation Counterclaim

With respect to Plaintiff's request that the counterclaim sounding in defamation be dismissed, this motion must be denied without prejudice. The pleadings presented to the Court by Plaintiff do not include a reply to the counterclaims. CPLR 3011 requires that there be a reply to each counterclaim. Since CPLR 3212(a) mandates that issue be joined before a motion for summary judgment is made, Plaintiff should have moved [*6]pursuant to CPLR 3211 with respect to dismissal of the counterclaim.

In any event, Plaintiff's papers are unclear as to whether the motion is seeking dismissal of both counterclaims or solely the defamation counterclaim. In the notice of motion, Plaintiff seeks "Summary Judgment pursuant to CPLR 3212." Plaintiff's attorney's affirmation references only the dismissal of the defamation counterclaim in the first paragraph. However, in the last paragraph and the prayer for relief, Plaintiff seeks dismissal of both counterclaims; defamation and quantum meruit. Regardless of whether Plaintiff seeks to dismiss one or both counterclaims, no evidence has been presented to this Court upon which summary judgment could be granted dismissing either of Defendant's counterclaims.

Even if issue had been joined, Plaintiff submits no evidence or argument in support of summary dismissal of either counterclaim. CPLR 3212(b) requires that a motion for summary judgment be supported with an affidavit from a person with personal knowledge of the facts, pleadings and other available proof. According to Ferrantello's second counterclaim, "Plaintiff has made false and derogatory statements to third parties, including current and potential customers, which impugn Defendant's financial reliability, character and reputation, including that the Defendant has failed to pay a debt as due." (Defendant's Answer ¶ 15). Benacquista's affidavit is silent on the issue of Ferrantello's counterclaim for defamation. The only reference to the counterclaim is in the Plaintiff's attorney's affirmation, which classifies the defamation counterclaim as "frivolous". Accordingly, Plaintiff's motion seeking dismissal of Ferrantello's counterclaim must be denied without prejudice as there is no evidence to support the dismissal and Ferrantello's two counterclaims must be severed and survive pursuant to CPLR 3212(e)(1).

That being said, a cursory review of the counterclaims demonstrates that neither states a prima facie cause of action. Thus, on the date set for the inquest on Plaintiff's damages, counsel shall first appear before this Court to show cause why the counterclaims should not be dismissed. If either or both of the counterclaims are sustained, the Court shall then conduct a preliminary conference.

Accordingly, it is,

ORDERED, that the portion of Plaintiff's motion seeking summary judgment on his first cause of action is granted and is otherwise denied, and the counterclaims are severed and continued; and it is further,

ORDERED, that the matter is set down for a hearing before Special Referee Thomas V. Dana on June 26, 2008 at 10:30 a.m. to hear and determine the amount due to Plaintiff in accordance herewith provided that not later than June 6, 2008, Plaintiff serves a copy of this Order with Notice of Entry, Notice of Inquest and a Note of Issue on Defendant's counsel and upon payment of the appropriate fees and filing of the Note of Issue and service of a copy of this Order upon the Calendar Clerk of this Court not later than June 13, 2008; and it is further, [*7]

ORDERED, that upon determination of the amount due to Plaintiff by the Special Referee, Plaintiff shall have leave to enter a Clerk's judgment in such sum together with interest as determined by the Special Referee and costs and disbursements as taxed by the Clerk; and it is further,

ORDERED, that, on the Court's own motion, counsel shall appear before this Court on June 26, 2008 at 9:30 a.m. at which time Defendant shall show cause why the counterclaims should not be dismissed. Plaintiff's time to reply to said counterclaims is extended until further order of the Court.

This constitutes the Decision and Order of the Court.

Dated: Mineola, NY_____________________________

April 30, 2008Hon. Leonard B. Austin, J.S.C.