Opinion
April 27, 1987
Appeal from the Supreme Court, Orange County (King, J.).
Ordered that the order is affirmed, with costs.
When a written agreement provides that it cannot be changed orally, a subsequent written amendment or modification, as in this case, may be effective if signed by the party against whom enforcement is sought (General Obligations Law § 15-301; DFI Communications v Greenberg, 41 N.Y.2d 602, rearg denied 42 N.Y.2d 910). The fact that the original agreement requires that amendments or modifications be signed by all of the parties to the original agreement is not dispositive if the evidence, taken as a whole, shows that the amendment was authentic or was otherwise ratified by the parties' conduct (see, DFI Communications v Greenberg, supra, at 606; Bisbing v Sterling Precision Corp., 34 A.D.2d 427; Restatement [Second] of Contracts §§ 209, 210). This issue as well as the issue of whether (or how much of) the plaintiff's claim is time barred involve questions of fact that cannot be resolved on the present record. We find that the amendment to the original agreement, if effective, permits a shareholder to directly claim reimbursement from another shareholder for funds contributed in excess of the claimant's pro rata obligation. Additionally, the plaintiff was not required to plead the occurrence of conditions precedent in his complaint, since it is the defendant's obligation to plead their nonoccurrence (see, CPLR 3015 [a]). Accordingly, the defendant's motion was properly denied. Thompson, J.P., Brown, Niehoff and Rubin, JJ., concur.