Paul Kirtack & Sons, Inc. v. Neustadt

Appellate Division of the Supreme Court of New York

Paul Kirtack & Sons, Inc. v. Neustadt

103 A.D.2d 863, 478 N.Y.S.2d 99, 1984 N.Y. App. Div. LEXIS 19526

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

DecidedJuly 5, 1984

StatusPublished

This text of 103 A.D.2d 863 (Paul Kirtack & Sons, Inc. v. Neustadt) 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

Paul Kirtack & Sons, Inc. v. Neustadt, 103 A.D.2d 863, 478 N.Y.S.2d 99, 1984 N.Y. App. Div. LEXIS 19526 (N.Y. Ct. App. 1984).

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— Appeal from an order of the Supreme Court at Special Term (Conway, J.), entered June 1, 1983 in Sullivan County, which denied defendant’s motion to dismiss the complaint, f Defendant is president of Orange County Egg Processing, Ltd. (the corporation). In 1981, defendant contracted with plaintiff for the delivery and installation of plumbing, heating and electrical supplies at the corporation’s place of business. The amount due was $11,201.61, of which $5,129.07 has been paid. On December 1, 1982, the corporation filed for protection under chapter 11 of the Bankruptcy Code. Plaintiff acquired the status of an unsecured creditor. 11 Plaintiff commenced this action directly against defendant in December of 1982. In March of 1983, before serving an answer, defendant moved to dismiss the complaint on the ground that the action is barred by the Statute of Frauds (CPLR 3211, subd [a], par 5). Special Term denied the motion, and this appeal by defendant ensued, f Defendant argues that the action is barred by the Statute of Frauds because a contract to answer for the debt of another party must be in writing (General Obligations Law, § 5-701, subd a, par 2). As pointed out by Special Term, however, the complaint does not allege that defendant guaranteed payment of the corporation’s debt. Rather, the complaint alleges that the contract was between plaintiff and defendant personally. For that reason, the Statute of Frauds is not a viable defense. We note that, inasmuch as issue had not yet been joined, it was not appropriate to consider defendant’s motion to be one for summary judgment. After service of, an answer, such a motion raising the issue of whether triable issues of facts exist would lie. If Order affirmed, with costs. Mahoney, P. J., Main, Mikoll, Yesawich, Jr., and Harvey, JJ.,.concur.

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— Appeal from an order of the Supreme Court at Special Term (Conway, J.), entered June 1, 1983 in Sullivan County, which denied defendant’s motion to dismiss the complaint, f Defendant is president of Orange County Egg Processing, Ltd. (the corporation). In 1981, defendant contracted with plaintiff for the delivery and installation of plumbing, heating and electrical supplies at the corporation’s place of business. The amount due was $11,201.61, of which $5,129.07 has been paid. On December 1, 1982, the corporation filed for protection under chapter 11 of the Bankruptcy Code. Plaintiff acquired the status of an unsecured creditor. 11 Plaintiff commenced this action directly against defendant in December of 1982. In March of 1983, before serving an answer, defendant moved to dismiss the complaint on the ground that the action is barred by the Statute of Frauds (CPLR 3211, subd [a], par 5). Special Term denied the motion, and this appeal by defendant ensued, f Defendant argues that the action is barred by the Statute of Frauds because a contract to answer for the debt of another party must be in writing (General Obligations Law, § 5-701, subd a, par 2). As pointed out by Special Term, however, the complaint does not allege that defendant guaranteed payment of the corporation’s debt. Rather, the complaint alleges that the contract was between plaintiff and defendant personally. For that reason, the Statute of Frauds is not a viable defense. We note that, inasmuch as issue had not yet been joined, it was not appropriate to consider defendant’s motion to be one for summary judgment. After service of, an answer, such a motion raising the issue of whether triable issues of facts exist would lie. If Order affirmed, with costs. Mahoney, P. J., Main, Mikoll, Yesawich, Jr., and Harvey, JJ.,.concur.

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103 A.D.2d 863, 478 N.Y.S.2d 99, 1984 N.Y. App. Div. LEXIS 19526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paul-kirtack-sons-inc-v-neustadt-nyappdiv-1984.

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