
    Cadlerock, L.L.C., Appellant-Respondent, v Jan Z. Renner, Respondent-Appellant.
    [963 NYS2d 90]
   —Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered August 15, 2012, which denied defendant’s motion for summary judgment, and plaintiffs cross motion to strike defendant’s affirmative defense of equitable estoppel and for summary judgment, unanimously modified, on the law, the cross motion granted, the matter remanded for a determination of attorneys’ fees and expenses, and otherwise affirmed, without costs.

In this action to recover on a promissory note, we had found an issue of fact as to whether the action is barred as a result of equitable estoppel arising from plaintiffs failure until commencement of the action in April 2008 to seek recovery of arrears since the January 2003 sale of the cooperative unit that the note financed (72 AD3d 454 [2010]). Even if, arguendo, silence is sufficient to support an estoppel, we find that, on this second motion for summary judgment after discovery, defendant failed to demonstrate that he suffered prejudice as a result of plaintiffs inaction. We disagree with the motion court’s perception that defendant misunderstood the question about prejudice posed to him at his deposition, as well as with its conclusion that his failure to articulate any change in position resulting from plaintiffs inaction nevertheless constituted prejudice (see BWA Corp. v Alltrans Express U.S.A., 112 AD2d 850, 853 [1st Dept 1985]).

Concur—Mazzarelli, J.E, Acosta, Renwick, Richter and Gische, JJ.  