U. S. Concord, Inc. v. Koss Co-Graphics, Inc.

Order, Supreme Court, New York County (Shirley Fingerhood, J.), entered on or about March 5, 1993, which, in an action on a promissory note against the maker and guarantors, inter alia, granted plaintiffs motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs. Defendants’ opposition to the motions was insufficient to raise an issue of fact that plaintiff orally waived the no-oral-modification provision in the parties’ security agreement governing the note in issue, and agreed to release defendants from their liability thereon. Moreover, the alleged waiver was still executory at the time plaintiff demanded payment from the guarantors, and thus could be withdrawn (compare, Blackman DeStefano Real Estate v Smith, 157 AD2d 932, 934, with Congress Talcott Corp. v Shapiro, 176 AD2d 551). We have considered the remaining arguments and find them to be without merit. Concur — Sullivan, J. P., Rosenberger, Kupferman and Ross, JJ.