Opinion
No. 8524 2013.
2014-02-24
126 NEWTON ST., LLC, Plaintiff, v. ENGINEERING SERVICES ASSOCIATES, P.C., and Salvatore P. Accomando, P.E., Defendants.
That branch of the motion which is for an order pursuant to CPLR 3211(a)(7) dismissing the eleventh cause of action, which is for breach of an oral indemnification agreement and oral guarantee, is granted. The plaintiff alleges that in May, 2008, defendant Accomando verbally agreed to indemnify the plaintiff for losses and expenses arising from defendant ESA's work. General Obligations Law § 5–701(a)(2) requires an agreement to be in writing if it “[i]s a special promise to answer for the debt, default or miscarriage of another person * * *.” It is true that not every promise of indemnity is subject to the Statute of Frauds. ( See, Kessenich v. Raynor 169 F.Supp.2d 119.) For example, an oral promise to indemnify a guarantor of a debt is not an agreement to pay the debt of another that is barred by the Statute of Frauds. ( See, Tucci v. Talon Seafood South, Inc., 27 AD3d 642; 28 N.Y. Prac., Contract Law § 26:16.) However, in the case at bar, the alleged oral indemnification agreement is a promise to answer for the debts, defaults, or failures (i.e., “miscarriages”) of another, and, thus, it is barred by the Statute of Frauds. ( See, International Fidelity Ins. Co. v. Robb, 159 A.D.2d 687.) The plaintiff also alleges that Accomando gave his oral guarantee of defendant's ESA's work, but this oral guarantee violates the Statute of Frauds. ( See, New York Produce Trade Ass'n, Inc. v. Mazzilli, 49 A.D.2d 729.) Generally, a surety agreement must be in writing. ( See, Fort Howard Paper Co. v. William D. Witter, Inc., 787 F.2d 784.)