Herman v. Gillette

Appellate Division of the Supreme Court of New York

Herman v. Gillette

251 A.D.2d 374, 672 N.Y.S.2d 815, 1998 N.Y. App. Div. LEXIS 6585

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 8, 1998

StatusPublished

Cited by1 cases

This text of 251 A.D.2d 374 (Herman v. Gillette) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Herman v. Gillette, 251 A.D.2d 374, 672 N.Y.S.2d 815, 1998 N.Y. App. Div. LEXIS 6585 (N.Y. Ct. App. 1998).

Pincite

Opinion

—In an action, inter alia, to recover the proceeds of a loan, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Greenstein, J.), dated April 16, 1997, as denied their cross motion for summary judgment dismissing the third, fourth, and fifth causes of action as barred by the Statute of Frauds.

Ordered that the order is affirmed insofar as appealed from, with costs.

We agree with the Supreme Court that the plaintiffs’ third, fourth, and fifth causes of action are not barred by the Statute of Frauds (see, General Obligations Law § 5-701 [a] [2]), as the oral promise in question represents an original and indepen[375]*375dent duty by the defendants to make payment (see, e.g., Bart & Schwartz v Teller, 228 AD2d 630; Rowan v Brady, 98 AD2d 638). We also reject the defendants’ contention, raised for the first time on appeal, that there are issues of fact as to whether the promise in question comes within the Statute of Frauds. Mangano, P. J., Miller, Pizzuto and Krausman, JJ., concur.

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—In an action, inter alia, to recover the proceeds of a loan, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Greenstein, J.), dated April 16, 1997, as denied their cross motion for summary judgment dismissing the third, fourth, and fifth causes of action as barred by the Statute of Frauds.

Ordered that the order is affirmed insofar as appealed from, with costs.

We agree with the Supreme Court that the plaintiffs’ third, fourth, and fifth causes of action are not barred by the Statute of Frauds (see, General Obligations Law § 5-701 [a] [2]), as the oral promise in question represents an original and indepen[375]*375dent duty by the defendants to make payment (see, e.g., Bart & Schwartz v Teller, 228 AD2d 630; Rowan v Brady, 98 AD2d 638). We also reject the defendants’ contention, raised for the first time on appeal, that there are issues of fact as to whether the promise in question comes within the Statute of Frauds. Mangano, P. J., Miller, Pizzuto and Krausman, JJ., concur.

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Bluebook (online)

251 A.D.2d 374, 672 N.Y.S.2d 815, 1998 N.Y. App. Div. LEXIS 6585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herman-v-gillette-nyappdiv-1998.

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