Herman v. Gillette

—In an action, inter alia, to recover the proceeds of a loan, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Greenstein, J.), dated April 16, 1997, as denied their cross motion for summary judgment dismissing the third, fourth, and fifth causes of action as barred by the Statute of Frauds. Ordered that the order is affirmed insofar as appealed from, with costs. We agree with the Supreme Court that the plaintiffs’ third, fourth, and fifth causes of action are not barred by the Statute of Frauds (see, General Obligations Law § 5-701 [a] [2]), as the oral promise in question represents an original and indepen 375 dent duty by the defendants to make payment (see, e.g., Bart & Schwartz v Teller, 228 AD2d 630; Rowan v Brady, 98 AD2d 638). We also reject the defendants’ contention, raised for the first time on appeal, that there are issues of fact as to whether the promise in question comes within the Statute of Frauds. Mangano, P. J., Miller, Pizzuto and Krausman, JJ., concur.