| Perini v Sabatelli |
| 2008 NY Slip Op 05492 [52 AD3d 588] |
| June 10, 2008 |
| Appellate Division, Second Department |
| Bernard J. Perini, Appellant, v Mary T. Sabatelli,Respondent. |
—[*1] Kressel, Rothlein, Walsh & Roth, LLC, Massapequa, N.Y. (David I. Roth of counsel), forrespondent.
In an action to recover damages for breach of contract, the plaintiff appeals from an order of theSupreme Court, Nassau County (Austin, J.), entered July 17, 2007, which granted the defendant'smotion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion for summaryjudgment dismissing the complaint is denied.
Enforcement of an oral promise to guarantee the debt of another is barred by the statute of frauds(see General Obligations Law § 5-701 [a] [2]). However, there is an exception wherethe plaintiff can prove that an oral promise to answer for the debt of another "is supported by a newconsideration moving to the promisor and beneficial to [the promisor] and that the promisor hasbecome in the intention of the parties a principal debtor primarily liable" (Martin Roofing vGoldstein, 60 NY2d 262, 265 [1983], cert denied 466 US 905 [1984]).
In this case, in response to the defendant's prima facie showing of entitlement to judgment as amatter of law on the ground that enforcement of the alleged agreement was barred by the statute offrauds, the plaintiff established that there were triable issues of fact as to whether the alleged oralagreement was supported by new consideration flowing to the defendant and beneficial to herpersonally, and, if so, whether the defendant, in making the agreement, intended to become primarily[*2]liable for the debt (see Concordia Gen. Contr. v Peltz, 11 AD3d 502 [2004]). As such, itwas error to have granted the defendant's motion for summary judgment dismissing the complaint.Lifson, J.P., Florio, Carni and Belen, JJ., concur. [See 16 Misc 3d 1114(A), 2007 NY SlipOp 51418(U).]