DeRosis v. Kaufman

OPINION OF THE COURT Wallach, J. On this appeal we are required to determine whether a series of writings, executed and delivered by defendant to plaintiff at various times over a four-year period, are sufficient to overcome the defense of the Statute of Frauds. Framing the issue as entirely one of law, both parties moved for summary judgment. The IAS Court granted plaintiff’s cross motion and directed judgment in his favor. We disagree. In our view, the writings proffered by plaintiff are woefully insufficient to establish that defendant became a guarantor of repayment to plaintiff of a $75,000 "loan” allegedly made by plaintiff to one Michael Goldberg. There is no dispute that such a promise, to be enforceable, must be in writing (General Obligations Law § 5-701 [a] [2]). Plaintiff places major reliance upon two memoranda which defendant signed and delivered to him on July 28, 1993.1 The first reads: "I owe Louis De Rosis $75000 "[signed] Bernard Kaufman "7/28/93”. The second reads: "As of 7/28/93, my obligation to pay Louis DeRosis for his prior investment in Schact Fish Co. is $75000 "[Therefore] I owe Louis De Rosis 75000 "[signed] Bernard Kaufman”. [378] It may be noted that these two documents are somewhat self-contradictory: the first suggests a direct debtor-creditor relationship; the second, although repeating that status, is adopted in plaintiffs complaint as a "guarantee.” Yet that word or concept never appears in the second instrument. There is a reference to plaintiffs prior investment in Schact Fish Co., but this writing is as consistent with a purchase by defendant of an equity "investment” in Schact Fish, held by plaintiff, as with anything else. There is nothing in the writing to tie the alleged primary obligor, Goldberg, to Schact Fish Co. Thus, missing from this pair of memoranda is any reference to (1) a loan (2) from plaintiff to Goldberg (3) which defendant is undertaking to guarantee. A third (earlier) writing, which also fails to advance plaintiffs case, reads as follows: "I owe Louis De Rosis $150000 and $25000 for a total of $175000 "[signed] Bernard Kaufman "6/6/89. "Returnable and payable by July 1, 1989”. Clearly, this June 1989 writing does nothing to supply any of the elements of guaranty missing from the July 1993 writing. However, it is urged in the dissent that light can be found in the circumstance that about five months earlier, on January 14, 1989, "Mike Goldberg” signed a six-month promissory note in the sum of $25,000 to the order of plaintiff. Beneath Mr. Goldberg’s signature is identified an entirely different entity, "Seafood Acquisition Group”. Rather than appearing as a guarantor on this instrument, defendant signed simply as a witness to Mr. Goldberg’s signature. And nothing therein enables us to say that the $25,000 referred to in this note is a component of the $75,000 referred to in the paper signed and delivered four and a half years later. We can say that "Seafood Acquisition Group” is not the same as "Schact Fish Co.,” and Mr. Goldberg’s connection to that latter entity remains pure conjecture. What these bits of paper bearing defendant’s signature resemble, if anything, is the type of I.O.U. sometimes accepted by casinos in exchange for a stack of chips. Damon Runyon would have called them "markers”; his story about one ended up as a movie in which Hollywood’s then most valuable prop [379] erty2 was delivered as security for repayment of same. But even if these writings might do "nicely, nicely, thank you” in the world of Guys and Dolls, they cannot overcome the barrier of the statute in an ordinary commercial setting so as to create a guaranty to make good the default of another. As we recently held in Allied Sheet Metal Works v Kerby Saunders, Inc. (206 AD2d 166, 168), "To be considered a sufficient memorandum within the ambit of the Statute of Frauds, a writing 'must designate the parties, identify and describe the subject matter and state all the essential or material terms of the contract’ ” (emphasis added). This has been settled law in this State for over a century (see, Mentz v Newwitter, 122 NY 491, 497; Wright v Weeks, 25 NY 153, 161 [Allen, J., concurring]). While it is true that an agreement may be pieced together from separate writings, those writings must be "connected with one another either expressly or by the internal evidence of subject matter and occasion” (Marks v Cowdin, 226 NY 138, 145 [Cardozo, J.]). The documents offered here meet neither test. In a futile attempt to remedy the manifest deficiencies of the writings, plaintiff submitted an affidavit setting forth his version of the guaranty scenario. Perhaps because defendant did not deign to contradict that affidavit with one of his own (preferring to rely entirely upon his legal argument), the IAS Court treated defendant’s position as a virtual default. This error is now adopted by the dissent. Plaintiff’s affidavit must be disregarded as a matter of law. The Court of Appeals was unanimous on this point in Bazak Intl. Corp. v Mast Indus. (73 NY2d 113, 117-118): "Although a court ordinarily might take plaintiff’s affidavits into account on a dismissal motion (see, e.g., Rovello v Orofino Realty Co., 40 NY2d 633, 635-636), different considerations apply where the basis for the dismissal motion is a Statute of Frauds defense. Parol evidence, even in affidavit form, is immaterial to the threshold issue whether the documents are sufficient on their face to satisfy the Statute of Frauds. Consideration of parol evidence in assessing the adequacy of a writing for Statute of Frauds purposes would otherwise undermine the very reason for a Statute of Frauds in the first instance. That issue must be determined from the documents themselves, as a matter of law (see, Scheck v Francis, 26 NY2d 466, 472).” In sum, because the writings do not conform at all to plaintiff’s version of the oral contract of guaranty, and, indeed, [380] tend to contradict it (see, R.G. Group v Horn & Hardart Co., 751 F2d 69, 78 [2d Cir]), the complaint must be dismissed. Accordingly, the order, Supreme Court, New York County (Paula J. Omansky, J.), entered July 7, 1995, which denied defendant’s motion to dismiss the complaint upon a Statute of Frauds defense, and which granted plaintiff's cross motion for summary judgment in the amount of $75,000, plus interest, costs and disbursements, should be reversed, to the extent appealed from, on the law, the cross motion denied, the judgment in favor of plaintiff vacated, and defendant’s motion for summary judgment dismissing the complaint granted, without costs. The Clerk is directed to enter judgment accordingly. Footnotes [1] The date of this supposedly crucial pair of memoranda is set forth erroneously in the complaint as "the 20th day of July, 1993,” and in plaintiffs affidavit in support of his cross motion for summary judgment as "July 28, 1994”. [2] Shirley Temple, in Little Miss Marker (Twentieth Century-Fox 1934).