Rowan v. Brady , 469 N.Y.S.2d 711 ( 1983 )

Ross, J. P.,

dissents in a memorandum as follows: I would affirm. Despite the fact that plaintiff and defendant had a decade-long social relationship and defendant was an officer and 50% shareholder in a corporation known as Highspire, Inc., my examination of the record reveals that the overwhelming evidence leads to the conclusion that defendant did not orally promise plaintiff that he would be personally liable for the corporation’s legal bills after March 28, 1979 concerning certain expensive antitrust litigation. Plaintiff in his affidavit admits, in pertinent part, that he has been a lawyer for more than 32 years and that he has “been counsel to numerous corporations of not unsubstantial size and worth.” This writer is certain that the plaintiff, an attorney, is thoroughly familiar with the Statute of Frauds and its many ramifications. In fact, at the same meeting that plaintiff claims that defendant made the oral promise in issue, the plaintiff obtained a written guarantee from the defendant relating to other legal expenses of the corporation. Section 5-701 (subd a, par 2) of the General Obligations Law provides: “Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party ‘to be charged therewith * * * if such agreement, promise or undertaking * * * [i]s a special promise to answer for the debt, default or miscarriage of another person”. Applying this statute to the instant facts results in the finding that defendant’s timely assertion of the affirmative defense of the Statute of Frauds entitles him to summary judgment since concededly the promise relied upon by plaintiff was oral. As a unanimous Court of Appeals stated through Judge Pound, more than 65 years ago, “If we pick a few phrases from the context, we may draw the conclusion that defendant intended to assume such a relation to plaintiff, but on all the evidence we find but one principal primary debtor and that is [Highspire, Inc.]. The ancient purpose of the Statute of Frauds was to require satisfactory evidence of a promise to answer for the debt of another person and its efficacy should not be wasted by unsubstantial verbal distinctions” (Richardson Press v Albright, 224 NY 497, 502). There are no material triable issues of fact.