Jobin Waterproofing Corp. v. Dember Construction Corp.

In an action to recover damages for breach of contract, the defendants Bryant Park Restoration Corporation and Grand Central Partnership appeal from an order of the Supreme Court, Nassau County (Burke, J.), dated December 20, 1996, which denied their motion to dismiss the fourth cause of action for failure to state a cause of action. Ordered that the order is affirmed, with costs. The trial court properly denied the appellants’ motion to dismiss the fourth cause of action. Assuming that all of the allegations in the complaint are true, the complaint stated a cause of action against both appellants to recover damages for breach of an oral contract (see, Becker v Schwartz, 46 NY2d 401; Reliance Ins. Co. v Morris Assocs., 200 AD2d 728, 729). Moreover, the action was not barred by the Statute of Frauds (see, General Obligations Law § 5-701), since the oral promise to pay for the debt of another represented an independent duty of payment irrespective of the liability of the principal debtor, and the promise was based on new consideration (see, Bart & Schwartz v Teller, 228 AD2d 630; Ehmer Forest Hills Corp. v Gonzalez, 159 AD2d 613). O’Brien, J. P., Sullivan, Friedmann and Goldstein, JJ., concur.