Tri-Land Properties, Inc. v. 115 West 28th Street Corp.

238 A.D.2d 214, 656 N.Y.S.2d 261, 1997 N.Y. App. Div. LEXIS 3893

Opinion

—Order, Supreme Court, New York County (Stuart Cohen, J.), entered October 3, 1996, which, in an action to foreclose a mortgage, insofar as appealed from, granted plaintiffs motion for summary judgment dismissing defendant-appellant subordinate lienor’s counterclaim for legal fees as barred by the Statute of Frauds, unanimously affirmed, with costs.

Appellant, the former attorney for defendants mortgagor and guarantor, seeks to enforce an alleged oral promise by plaintiff mortgagee to pay for legal services he rendered to defendants. Such claim was properly held barred by the Statute of Frauds requiring that an agreement to answer for the debt of another be in writing. First, and contrary to appellant’s argument based on the doctrine of part performance, appellant’s continued rendering of legal services to the mortgagor was not "unequivocally referable” to the alleged agreement. Second, appellant fails to show any new consideration flowing to plaintiff who, as the holder of the first and second mortgages on defendants’ property, did not derive a direct benefit from appellant’s continuing to provide legal services to defendants, and which consideration is necessary to a finding that plaintiff had become, in the intention of the parties, a principal debtor primarily liable for appellant’s legal fees (see, Martin Roofing v Goldstein, 60 NY2d 262, 264-265, cert denied 466 US 905). Concur—Milonas, J. P., Ellerin, Rúbin and Mazzarelli, JJ.