Con-Solid Contracting, Inc. v. Litwak Development Corp.

—In an action to recover damages for breach of contract, Con-Solid Contracting, Inc., appeals from an order of the Supreme Court, Queens County (Le-Vine, J.), dated June 26, 1995, which granted the motion of the respondents I.J. Litwak & Co., Inc., Irving J. Litwak, and Harris Litwak for summary judgment dismissing the complaint insofar as asserted against them. Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated insofar as asserted against the respondents. The Supreme Court improperly granted the respondents’ motion for summary judgment on the ground that the complaint was barred by the Statute of Frauds. The defendants, including the respondents, waived the defense of the Statute of Frauds by failing to assert it in either their verified answer or a motion to dismiss (see, CPLR 3211 [a] [5]; [e]; Raoul v Olde Vil. Hall, 76 AD2d 319, 333; Reich v Knopf, 65 AD2d 618, 619). Furthermore, this record presents issues of fact regarding whether I.J. Litwak & Co., Inc., which is a signatory to an amendment of the contract between the plaintiff and Litwak Development Corp., is jointly liable to the plaintiff for work performed pursuant to the contract. Since the determination of the parties’ intent depends, at least in part, on the credibility of extrinsic evidence, such determination should be made by a jury (see, Hartford Acc. & Indent. Co. v Wesolowski, 33 NY2d 169, 172). Mangano, P. J., Rosenblatt, Copertino and Krausman, JJ., concur.