Morris v. Phillips

—In an action, inter alia, to recover damages for breach of an oral contract, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Goldstein, J.), entered June 26, 1998, as denied their motion for summary judgment dismissing the first and fourth causes of action as barred by the Statute of Frauds. The appeal brings up for review so much of an order of the same court, dated September 24, 1998, as, upon reargument, adhered to the original determination. Ordered that the appeal from the order dated June 26, 1998, is dismissed, as that order was superseded by the order dated September 24, 1998, made upon reargument; and it is further, Ordered that the order dated September 24, 1998, is affirmed insofar as reviewed; and it is further, Ordered that the respondent is awarded one bill of costs. We agree with the Supreme Court that the defendants are not entitled to summary judgment dismissing the first and fourth causes of action as barred by the Statute of Frauds, since there are triable issues of fact regarding whether the oral promise in question represents an original and independent [537] duty by the defendants to make payment (see, Becker v Wells, 297 NY 275; Herman v Gillette, 251 AD2d 374; Rowan v Brady, 98 AD2d 638). The defendants’ remaining contentions are without merit. Mangano, P. J., O’Brien, Ritter and Schmidt, JJ., concur.