Mickey Bigg & Sons Quality Auto Body, Inc. v. Allstate Insurance

303 A.D.2d 566, 756 N.Y.S.2d 473, 2003 N.Y. App. Div. LEXIS 2687

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 17, 2003
• Status: Published

Opinion

—In an action, inter alia, to recover damages for services rendered, the defendants appeal, by permission, from an order of the Appellate Term, 9th and 10th Judicial Districts, entered December 26, 2001, affirming a judgment of the City Court, City of Newburgh, entered. September 12, 2000, which, upon a jury verdict, is in favor of the plaintiff and against them in the principal sum of $12,685.22.

Ordered that the order is affirmed, with costs.

Contrary to the defendants’ contention, the oral promise of payment made by the defendant’s agent to the plaintiff was not barred by the statute of frauds. The promise represented an independent duty of payment, irrespective of the liability of the principal debtor, and was based upon new consideration (see Martin Roofing v Goldstein, 60 NY2d 262 [1983], cert denied 466 US 905 [1984]; Kramer v Harrington Wells & Rhodes, 275 AD2d 302 [2000]; Karl Ehmer Forest Hills Corp. v Gonzalez, 159 AD2d 613 [1990]).

The defendants’ remaining contentions either are unpreserved for appellate review or without merit. Ritter, J.P., S. Miller, H. Miller and Cozier, JJ., concur.