Wave Crest Construction, Inc. v Cartier, Bernstein, Auerbach and Dazzo, P.C.

Wave Crest Constr., Inc. v Cartier, Bernstein, Auerbach & Dazzo, P.C. 2006 NY Slip Op 04272 [29 AD3d 982] May 30, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 19, 2006

Wave Crest Construction, Inc., Appellant,
v
Cartier, Bernstein, Auerbach and Dazzo, P.C., et al., Respondents.

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In an action, inter alia, for contractual indemnification, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated December 13, 2004, which granted the defendants' motion pursuant CPLR 3211 (a) (7) to dismiss the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff commenced this action against the defendant law firm and its individual partners alleging that a letter written by one of those partners on behalf of a potential client to the president of a lumber company constituted an express representation by the law firm to guarantee monies owed by the potential client to the plaintiff. The plaintiff further alleged that in reliance upon this representation, it subordinated a judgment in the amount of $40,000 owed to it by the potential client.

Contrary to the plaintiff's contentions, the subject letter did not contain any representation by the defendants to indemnify it or the company the letter was actually addressed to for any funds lost (see Vigliarolo v Sea Crest Constr. Corp., 16 AD3d 409 [2005]; Altchek v DiGennaro, 214 AD2d 527 [1995]). Moreover, any subsequent oral representations by the defendants to obtain money on behalf of the plaintiff did not obligate them to indemnify it, as "a special promise to answer for [*2]the debt, default or miscarriage of another person" must be in writing (General Obligations Law § 5-701 [a] [2]).

The plaintiff's remaining contentions are without merit. Goldstein, J.P., Mastro, Rivera and Lunn, JJ., concur.