Cadlerock Joint Venture II, LP v. Diab

In an action to recover on a promissory note, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Glover, J.), dated August 21, 2003, as denied those branches of its motion which were for summary judgment on the complaint against the defendants Pedro Tatarian and Gaspar Tatarian. The appeal insofar as asserted against the respondent Pedro Tatarian has been stayed by operation of the 1978 United States Bankruptcy Code (11 USC) § 362, and no determination is made herein concerning that part of the appeal. Ordered that the order is affirmed insofar as reviewed, with costs. In response to the plaintiff’s prima facie showing that the operation of the applicable statute of limitations was tolled and restarted by payments made subsequent to what would have been its usual expiration date (see Grant v Marshall, 307 AD2d 274 [2003]), the defendant Gaspar Tatarian raised a triable issue of fact as to whether or not those payments were attributable to him and/or authorized by him. Accordingly, the branch of the plaintiff’s motion which was for summary judgment against that defendant was properly denied (see Shoemaker v Benedict, 11 NY 176 [1854]; Chemical Bank v Cakepan, Inc., 72 AD2d 515 [1979]; Lyons Natl. Bank v Moore, 14 AD2d 488 [1961]). In light of this determination, we need not reach the parties’ remaining contentions. Florio, J.P., Adams, S. Miller and Santucci, JJ., concur.