Algemene Bank Nederland N.V. v. Toepfer

— Appeal from judgment, Supreme Court, New York County (Elliott Wilk, J.), entered May 31, 1990, which denied the petition pursuant to CPLR 5206 (e) to compel the sale of shares representing [5] respondent’s interests in a cooperative apartment is held in abeyance pending a hearing, before the court which rendered the judgment, on the issue of whether or not respondent’s delivery to petitioner of the stock was conditioned on petitioner’s promise that it would not disturb respondent’s occupancy of the apartment during her lifetime. Over the course of a period extending from September 1983 to March 1985, petitioner loaned in excess of $1,750,000.00 to S. Toepfer, Inc. (corporation), a New York corporation, operated as a family business, whose principals included Mr. Abraham E. Toepfer (now deceased), the respondent, who is his widow, and their adult sons, Howard and Steven. On or about September 20, 1983, the corporation, by Howard Toepfer, executed a General Liability Agreement (Agreement), as security for loans and other accommodations received from petitioner, and granted petitioner a security interest in collateral, broadly defined to include, among other things, all "property, rights and interests * * * which at any time shall come into possession or custody or under the control of [petitioner]”. Further, in conjunction with the execution of the Agreement, on the same day, the respondent and her sons individually executed an unconditional Guaranty of the indebtedness of the corporation, and, pursuant to the terms of that Guaranty, each guarantor granted to the petitioner a security interest in and a general lien upon any "property rights and interests of the undersigned [guarantor], which at any time shall come into the possession, custody or control of the [petitioner]”. Both the Agreement and Guaranty provided that their terms could only be changed or revoked or modified by a writing. About two years later, at the request of the petitioner, respondent executed a letter of Pledge (Pledge), dated October 10, 1985, pledging the 530 shares, allocated to the cooperative apartment she owned, located at 870 United Nations Plaza, apartment 13-A, Manhattan, to the petitioner, as collateral security for the corporation’s indebtedness. In addition, on the same day, the respondent assigned to the petitioner the proprietary lease to that apartment. The Pledge, prepared by the petitioner, contains a paragraph, which states in pertinent part, that, "Notwithstanding Pledgee’s [petitioner’s] rights in the Collateral pursuant hereto, Pledgee hereby consents and agrees that Pledgor [respondent] shall have the lifetime right to occupy the aforementioned Apartment * * * and to exercise all the rights of a shareholder of the Collateral”, subject to various conditions [6] largely directed to insuring that respondent fulfilled her obligations as a shareholder in the cooperative thereby insuring the integrity of those shares. Indeed, the language relied upon by the dissent regarding possible foreclosure or sale expressly refers to such contingencies as being by "other than the Pledgee” which is supportive of respondent’s, rather than petitioner’s, position. More than three years later, in November 1988, the petitioner claims that, due to a change in the law, it filed a UCC financing statement, in order to perfect a security interest in the shares of the apartment. Also, at about the same time, the petitioner sought and received, in December 1988, from respondent’s sons the actual stock certificates representing respondent’s ownership interest in the apartment. After the corporation defaulted, in March 1989, the petitioner sought repayment from respondent and her sons, based upon their 1983 Agreement and Guaranty, but payment was not made. By summons and complaint, dated March 31, 1989, petitioner commenced an action against the corporation, respondent, and her sons to recover that debt. Subsequently, upon the basis of the default of respondent and her sons, in May 1989, petitioner obtained a judgment in the total amount of $1,781,578.81. Since petitioner was unable to otherwise collect on that judgment, in June 1989, petitioner instituted, pursuant to CPLR 5206 (e), the instant special proceeding to compel the sale of the shares, representing the proprietary interest of respondent in the apartment, valued at $900,000.00, to satisfy the judgment. In response, the respondent, by separate affidavits submitted by her sons, opposed the petition, contending in substance, that petitioner requested the stock certificates as additional security for the corporate debt, and respondent, suffering from various illnesses and infirmities including colon cancer, a hip fracture and bilateral cataract extractions, gave up the stock certificates in exchange for a promise made by Ms. Florence D. Nolan, Vice President and Legal Counsel of the petitioner, to respondent’s sons that respondent "would never be disturbed from occupying her co-op apartment during her lifetime, and that so long as [respondent] was alive the Petitioner would never take any action against that apartment”. This, of course, appears consistent with the previously quoted language contained in the Pledge. Petitioner, by affidavit of Ms. Nolan denies that any promise [7] was made in exchange for receiving respondent’s shares. Specifically, Ms. Nolan stated "Let me emphasize that, despite the statements of Howard and Steven Toepfer to the contrary, there was no quid pro quo when the stock certificates were delivered. I never represented to any of the defendants that the [petitioner] would not seek possession of the Coop in the event of a default while the Respondent was still living”. The motion court denied the petition, in substance, upon the basis of the competing affidavits of the parties, finding that the petitioner must have been aware that respondent surrendered the shares because she believed the petitioner would allow her to occupy the apartment for the remainder of her lifetime. Although the Agreement and Guaranty, executed in 1983, contain provisions stating that the terms of those writings can only be changed, or revoked or modified by a writing, the Court of Appeals has held "[p]artial performance of an oral agreement to modify a written contract, if unequivocally referable to the modification, avoids the statutory requirement of a writing” (Rose v Spa Realty Assocs., 42 NY2d 338, 341 [1977]; see also, General Obligations Law § 15-301 [1]). In light of the language in the Pledge and the fact that the actual delivery of the shares concededly took place as a result of an oral request by petitioner, we find that the self-serving affidavits of the parties concerning the nature of that oral request are insufficient to permit a determination of whether the motion court abused its discretion in denying petitioner relief and that an evidentiary hearing is necessary on the issue of whether the respondent delivered to petitioner the stock certificates to her apartment with the specific understanding that petitioner would not disturb respondent’s occupancy of the apartment during her lifetime. Accordingly, the appeal is held in abeyance pending the results of such hearing. Concur — Ellerin, Ross and Rubin, JJ.