Halperin, Somers & Goldstick v. 54-55 Sixth Realty Corp.

50 A.D.2d 755, 376 N.Y.S.2d 162, 1975 N.Y. App. Div. LEXIS 11546

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 11, 1975
• Status: Published

Opinion

— Order, Supreme Court, New York County, entered August 15, 1975, denying the defendants’ motion to dismiss the complaint on the ground that the cause of action against the corporate defendant is unenforceable and illegal and fails to plead performance of conditions precedent, and that the cause of action against the individual defendant fails to allege consideration furnished for the guarantee sued upon, and denying an alternative motion to make the complaint more definite and certain, unanimously affirmed. Respondents shall recover of appellants $60 costs and disbursements of this appeal. Performance of conditions precedent need not be pleaded. (CPLR 3015, subd [a].) Section 5-1105 of the General Obligations Law provides that a promise in writing shall not be denied effect on the ground that the consideration therefor is past or executed. Appeal does not lie as a matter of right from denial of the motion to make the complaint more definite and certain. (CPLR 5701, subd [b] par 2; Marine Midland Bank-New York v Pacific Seafarers, 42 AD2d 900.) In this action for legal fees in which the services were rendered to the tenants against the corporate defendant as landlord, and in the settlement the corporate defendant agreed to the payment of the legal fee to the plaintiff on behalf of the tenants, and the individual defendant, a principal of the corporate landlord, guaranteed the payment in writing, there was nothing unenforceable or illegal in the transaction. Concur — Markewich, J. P., Kupferman, Murphy and Nunez, JJ.