Siwanoy Country Club, Inc. v. Font

CourtNew York Villiage Court
Writing for the CourtDAVID OTIS FULLER, Jr.
Citation135 Misc.2d 933,516 N.Y.S.2d 879
Decision Date04 June 1987
PartiesSIWANOY COUNTRY CLUB, INCORPORATED v. Ana Marie FONT and Stanley Markusen.

Page 879

516 N.Y.S.2d 879
135 Misc.2d 933
SIWANOY COUNTRY CLUB, INCORPORATED
v.
Ana Marie FONT and Stanley Markusen.
Village Court of Tuckahoe,
Westchester County.
June 4, 1987.

Page 880

Farrauto, Berman & Fontana, Yonkers, for plaintiff.

William J. Dowling, Jr., Bronxville, for defendant Markusen.

DAVID OTIS FULLER, Jr., Justice.

In this contract action, plaintiff Club moves for summary judgment against defendant Markusen pursuant to CPLR 3212 on all issues except Markusen's counterclaim for alleged wrongful exaction of a legal fee. Markusen cross-moves for summary judgment or dismissal of the Club's complaint.

The claimed contract arises out of services provided by the Club. In 1981, Markusen's wife (now deceased) wrote the Club that she and her husband wished to sponsor a wedding reception there for their niece, the daughter of Font, for about 125 guests. The letter was typed at defendant Markusen's office by one of his employees. The Club accepted the request in writing through its manager and the reception was held at the Club in June of that year. Defendant Markusen attended the reception as a Font guest.

The Club rendered a bill to Font of $7,404.88 on June 17, 1981. Because Font paid only $2,000.00 toward the bill, she and Markusen were sued by the Club in Supreme Court, Westchester County, for the balance and a default judgment was obtained against Font which was not satisfied. By order dated February 9, 1987, the case against Markusen was transferred under CPLR 325(c) to the Town Court of Eastchester, which in turn transferred the matter to this court on March 4, 1987 because both justices there recused themselves.

Markusen, conceding that there are no disputed material issues of fact, requests summary judgment on the ground that there is no writing that binds him for the services rendered by the Club to another (Font) as required by Section 5-701(a)(2) of the General Obligations Law, and that recovery against him is thus barred.

Section 5-701(a)(2) provides as follows:

"Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking:

* * *

"2. Is a special promise to answer for the debt, default or miscarriage of another person."

The difficulty with Markusen's argument is that, through his wife, he is already committed in writing to be responsible for the...

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