| CDJ Bldrs. Corp. v Hudson Group Constr. Corp. |
| 2009 NY Slip Op 08170 [67 AD3d 720] |
| November 10, 2009 |
| Appellate Division, Second Department |
| CDJ Builders Corp., Appellant, v Hudson GroupConstruction Corp. et al., Defendants, and Charter Development Company, LLC, et al.,Respondents. |
—[*1] Zetlin & De Chiara LLP, New York, N.Y. (David Abramovitz and Jeffrey Yick of counsel),for respondents.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals fromso much of an order of the Supreme Court, Kings County (Schmidt, J.), dated August 25, 2008,as granted those branches of the motion of the defendants Israel Prus, Charter DevelopmentCompany, LLC, and Bouma Corporation which were for summary judgment dismissing the fifthand sixth causes of action insofar as asserted against the defendants Bouma Corporation andCharter Development Company, LLC, respectively.
Ordered that the order is affirmed insofar as appealed from, with costs.
In June 2004 the plaintiff CDJ Builders Corp. (hereinafter CDJ) through its principal LouisAlba entered into a written contract with the defendant Hudson Group Construction Corp.(hereinafter Hudson) through its principal, the defendant Israel Prus. Hudson was a primecontractor on a construction project in Brooklyn, and it retained CDJ as one of its subcontractors.The defendant Charter Development Company, LLC (hereinafter Charter), owned the premiseswhere the construction work took place and had retained the defendant Bouma Corporation(hereinafter Bouma) as the project's construction manager. Bouma retained the prime contractorson the project, including Hudson. At some point after CDJ had completed its work under thecontract, a dispute arose between it and Hudson as to the amount of money Hudson owed CDJ.Hudson and CDJ ultimately agreed that the final amount due and owing was $97,000. In oraround June 2005, Hudson issued two checks payable to CDJ. The first check was in the amountof $27,000 and the second check was in the amount of $70,000. CDJ deposited both checks. Thefirst check cleared, but Prus stopped payment on the second check. According to Alba, Bouma'sproject [*2]manager had earlier made an oral promise to him thatBouma would delay payment to Hudson on the prime contract until CDJ received full paymentfrom Hudson. Bouma's project manager denies that any such conversation took place or that anysuch promise was made.
The Supreme Court properly granted those branches of the motion which were for summaryjudgment dismissing the fifth and sixth causes of action alleging breach of contract insofar asasserted against Bouma and Charter, respectively.
"Liability for breach of contract does not lie absent proof of a contractual relationship orprivity between the parties" (Hamlet atWillow Cr. Dev. Co., LLC v Northeast Land Dev. Corp., 64 AD3d 85, 104 [2009]). Asa general rule, a subcontractor is in privity with the general contractor on a construction project,but is not in privity with the owner even if the owner has benefitted from the contractor's work(id. at 104).
Here, the written contract was between CDJ as subcontractor and Hudson as a primecontractor. Neither Bouma nor Charter was a signatory to the contract. Therefore, CDJ was notin privity with either Bouma or Charter.
While CDJ alleges that Bouma made an oral promise to Alba to delay final payment toHudson until Hudson's checks to CDJ had been deposited and cleared, an oral promise toguarantee the debt of another is barred by the statute of frauds (see General ObligationsLaw § 5-701 [a] [2]; Perini vSabatelli, 52 AD3d 588 [2008]). An exception to this rule is where the plaintiff canprove that the oral promise was supported by new consideration benefitting the promisor and thatthe promisor has become primarily liable on the debt (see Martin Roofing v Goldstein,60 NY2d 262, 265 [1983], cert denied 466 US 905 [1984]; Concordia Gen. Contr. v Peltz, 11AD3d 502 [2004]; Bart & Schwartz v Teller, 228 AD2d 630, 631 [1996]). Here,CDJ failed to proffer any evidence demonstrating that, by making the purported oral promise,Bouma received any new consideration or that it became primarily responsible for Hudson'sdebt.
Moreover, CDJ's contention that Bouma's purported promise to delay payment to Hudsondid not constitute a promise to "answer for the debt, default or miscarriage of another person"(General Obligations Law § 5-701 [a] [2]) is without merit (see Bart & Schwartz vTeller, 228 AD2d at 631; Builders Millwork Co., Inc. v Nicolaysen, 282 App Div765 [1953]).
The plaintiff's remaining contentions are either improperly raised for the first time on appealor without merit. Mastro, J.P., Miller, Angiolillo and Austin, JJ., concur.