Oral modification: Changes to a contract must be in writing and not oral.
“Parties to a written agreement who include a proscription against oral modification are protected by subdivision 1 of section 15-301 of the General Obligations Law. Any contract containing such a clause ‘cannot be changed by an executory agreement unless such executory agreement is in writing and signed by the party against whom enforcement is sought.’ Put otherwise, if the only proof of an alleged agreement to deviate from a written contract is the oral exchanges between the parties, the writing controls. Thus, the authenticity of any amendment is ensured ( see 1283 DFI Communications v. Greenberg, 41 N.Y.2d 602, 606-607, 394 N.Y.S.2d 586, 589-590, 363 N.E.2d 312, 315-316 [1977]).” Rose v Spa Realty Assoc., 42 NY2d 338, 343 [1977].
“In order to be valid, oral agreement modifying time of payment of original note must be supported by sufficient consideration and part payment on a note which is due does not fulfill these requirements since neither a promise to do that which promisor is already legally bound to do, nor the performance of an existing legal obligation, constitutes a valid consideration for an agreement.” Fed. Deposit Ins. Corp. v Hyer, 66 AD2d 521 [2d Dept 1979]. Moreover, if the contract contains a no waiver clause, failure to honor a party’s demand for compliance with the contract’s unambiguous terms will constitute a breach in spite of what the course of performance has been. DeCapua v Dine-A-Mate, Inc., 292 AD2d 489, 491 [2d Dept 2002].
