Partial Performance of An Oral Modification to a Contract

In Joseph P. Day Realty Corp., v. Jeffrey Lawrence Associates, (270 A.D.2d 140, 704 N.Y.S.2d 587 [1st Dept.]) the Court noted that although there are circumstances where partial performance of an oral modification may avoid the necessity of a writing such acts which purportedly support the claim of partial performance must be referable to the claimed performance and not ordinary incidents of the pre-existing lease. In Chimart Associates v. Paul (66 N.Y.2d 570, 498 N.Y.S.2d 344, 489 N.E.2d 231), Chief Judge Kaye, writing then as Judge on the Court of Appeals on behalf of the unanimous Court quoted from Backer Mgt Corp., v. Acme Quilting Co., 46 N.Y.2d 211, 219, 413 N.Y.S.2d 135, 385 N.E.2d 1062 that "there is a 'heavy presumption that a deliberately prepared and executed written instrument manifests the true intention of the parties' and a correspondingly high order of evidence is required to overcome that presumption."