Lippe v. Finley 75 A.D.2d 558

Judgment, Supreme Court, New York County, entered October 30, 1979, and a subsumed order entered October 25, 1979, which granted defendant’s motion to confirm the Referee’s report, dismissed the complaint and granted summary judgment in defendant’s favor, unanimously reversed, on the law, without costs, and summary judgment is denied. In this action to recover on a 1969 promissory note plaintiff swears that in 1973 defendant made a partial payment on account of the note and in acknowledgment thereof, thus removing the bar of the six-year Statute of Limitations. Defendant categorically denies making any such payment or promise. Rather than impel Special Term to direct a reference the presence of this fact issue required it to deny defendant’s motion forthwith. (Southern Assoc, v United Brands Co., 67 AD2d 199; Marshall, Bratter, Greene, Allison & Tucker v Mechner, 53 AD2d 537.) Concur—Birns, J. P., Sandler, Ross, Markewich and Yesawich, JJ.