Volpe v. Volpe

¶1I respectfully dissent in part. I disagree with the conclusion of the majority that the 1981 note in which petitioner wrote “[a]ny money I owe you I can catch up as soon as possible” amounts to a conditional promise to “pay ‘when able’ ” (Lorenzo v Bussin, 7 AD2d 731, 732 [1958], affd 7 NY2d 1039 [1960]). In my view, even if the reference in the note to “[a]ny money I owe you” suffices to “recognize an existing debt” under General Obligations Law § 17-101 (Sitkiewicz v County of Sullivan, 256 AD2d 884, 886 [1998], appeal and lv dismissed 93 NY2d 908 [1999]), the phrase “I can catch up as soon as possible” is not a conditional promise to pay when able, but rather an unconditional promise to pay *1179expeditiously, i.e., a “speedier performance than ‘within a reasonable time’ ” (Roy Realty Co. v B. Altman & Co., 194 App Div 43, 45-46 [1920] [Page, J., dissenting], revd on dissenting op 231 NY 549 [1921]; see House v Hornburg, 267 App Div 557, 561-562 [1944], affd 294 NY 750 [1945]; Williams v Gridley, 110 App Div 525, 527 [1906], affd, 187 NY 526 [1907]; cf. Lorenzo, 7 AD2d at 732 [promise conditioned on ability to pay]; Hakim v Peckel Family Ltd. Partnership, 280 AD2d 645 [2001] [promise conditioned on acceptance of reduced amount]; Flynn v Flynn, 175 AD2d 51, 52 [1991], lv denied 78 NY2d 863 [1991] [promise conditioned on receipt of “some assistance”]). I would therefore affirm the judgment. Present — Hurlbutt, J.P., Scudder, Kehoe, Smith and Hayes, JJ.