Second Department Refuses to Revive a Stale Claim on a Promissory Note

• Posted on: Feb 6 2026

By: Jonathan H. Freiberger

This BLOG has written numerous articles addressing statutes of limitation.[1] Today’s article discusses Mark v. Trimarco, a case decided by the Appellate Division, Second Department, on February 4, 2026, in which the plaintiff unsuccessfully attempted to breathe new life into an otherwise expired limitations period to sue on a promissory note.

The statute of limitations on a promissory note is six years. CPLR 213(2); see also Carpenito v. Linksman, 197 A.D.3d 553, 554 (2^nd Dep’t 2021). However, an expired statute of limitations can be revived in numerous ways. As noted in this BLOG’s article “Revive a Time-Barred Claim Using §17-101 of New York’s General Obligations Law,” “the primary purpose of Statutes of Limitation is to relieve defendants of the necessity of investigating and preparing a defense where the action is commenced against them after the expiration of the statutory period because the law presumes that by that time evidence has been lost, memories have faded and witnesses have disappeared.” Connell v. Hayden, 83 A.D.2d 30 (2^nd Dep’t 1981). This problem may be ameliorated by General Obligations Law §17-101, which provides that “[a]n acknowledgment or promise contained in a writing signed by the party to be charged thereby is the only competent evidence of a new or continuing contract whereby to take an action out of the operation of the provisions of limitations of time for commencing actions under the civil practice law and rules other than an action for the recovery of real property….”

Invocation of GOL §17-101, requires “a signed writing which validly acknowledges the debt.” Mosab Const. Corp v. Prospect Park Yeshiva, Inc., 124 A.D.3d 732, 733 (2^nd Dep’t 2015) (citations and internal quotation marks omitted). “To constitute an acknowledgement, a writing must be signed and recognize an existing debt and must contain nothing inconsistent with an intention on the part of the debtor to pay it.” Karpa Realty Group, LLC v. Deutsche Bank Nat. Trust Co., 164 A.D.3d 886, 888 (2^nd Dep’t 2018) (citations and internal quotation marks omitted).

Signatures can be added to a writing manually or electronically. As to the latter, the New York State Technology Law addresses circumstances where one can be bound by “electronic signatures.” Thus, the conclusion that an email can be deemed a signed writing:

is buttressed by reference to the New York State Technology Law, former article 1, “Electronic Signatures and Records Act,” which was enacted by the Legislature in 2002. In the accompanying statement of legislative intent, the Legislature stated in part:

“[This act] is intended to support and encourage electronic commerce and electronic government by allowing people to use electronic signatures and electronic records in lieu of handwritten signatures and paper documents” (L 2002, ch 314, § 1).

Section 302(3) of this statute states that an “‘[e]lectronic signature’ shall mean an electronic sound, symbol, or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record.” Section 304(2) of the statute states that “an electronic signature may be used by a person in lieu of a signature affixed by hand [and][t]he use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand.”

Forcelli v. Gelco Corp., 109 A.D.3d 244, 250-251 (2^nd Dep’t 2013).[2]

Another way that a statute of limitations can be renewed is “by partial payment of principal or interest which has the effect of an acknowledgement or new promise to pay under the note.” Aldridge v. LNG Enterprises, Inc., 220 A.D.3d 1178, 1179 (4th Dep’t 2023) (citations, internal quotation marks, brackets and ellipses omitted).

The prior discussion leads back to Mark. In 2007, the defendant in Mark delivered a promissory note to the plaintiff promising to pay $75,000 the following year. In 2017, the plaintiff commenced an action to collect on the promissory note. As one would expect, the defendant raised a statute of limitations defense. At a non-jury trial:

the plaintiff introduced into evidence an email sent by the defendant to the plaintiff in June 2013 and two checks that the plaintiff testified were partial payments made by the defendant to the plaintiff after the limitations period had ended. The email sent by the defendant included his full name, the name of his business, and the business’s web address. The defendant testified that he did not sign the email and that his name and other information were included in the email automatically. He further testified that he made the two payments to the plaintiff to cover dermatological services for which the defendant was never billed and because the plaintiff was experiencing financial difficulties. The two checks did not include a notation or cover letter stating that they were to be used to pay the debt owed on the note. At the close of evidence, the plaintiff argued that the email and the partial payments served to extend and revive the statute of limitations.

The trial court dismissed the complaint because the plaintiff’s claims were time barred and the plaintiff appealed.

In affirming the trial court, the Second Department found that while the emails in question “included the defendant’s full name, the name of his business, and the business’s web address, the defendant testified that he ‘didn’t sign’ the email and that the closing was an ‘automatic’ message that ‘comes up’ on his computer.” Based on the testimony, the Court concluded that “the defendant did not intend to sign the email, and thus, the email did not serve to revive the statute of limitations.” (Relying on Forcelli and the New York State Technology Law.)

The Court, in finding that the plaintiff’s “partial payment” position was unavailing, stated:

Here, the two checks did not contain a memo, notation, or cover letter indicating that the defendant intended for them to constitute partial payments under the note. Moreover, the defendant testified that he sent the plaintiff the checks to help the plaintiff financially and to reimburse the plaintiff for dermatology services rendered. Thus, the checks were not accompanied by circumstances amounting to an absolute and unqualified acknowledgment of the sum due under the note from which a promise to pay the remainder may be inferred.

Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.

[1] To find such articles, please see the BLOG tile on our website and type “statute of limitations” into the “search” box.

[2] This BLOG has written numerous articles addressing email signatures and discussing Forcelli. To find such articles, please see the BLOG tile on our website and type “Forcelli” into the “search” box.

Tagged with: Commercial Litigation, GOL 17-101, promissory notes, Statute of Limitations