Mathias & Carr, Inc. v Joseph Mangini

Mathias & Carr, Inc. v Mangini 2004 NY Slip Op 09223 [13 AD3d 148] December 14, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 23, 2005

Mathias & Carr, Inc., et al., Appellants,
v
Joseph Mangini et al., Respondents.

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Orders, Supreme Court, New York County (Richard F. Braun, J.), entered on or about January 25, 2004, which, inter alia, dismissed the complaint as against defendants Mangini and Pricomm, Inc., unanimously affirmed, without costs.

The action was properly dismissed as against Mangini since plaintiffs failed to demonstrate that said defendant made payments within six years of the commencement of the action (CPLR 213). The action was properly dismissed as against Pricomm, Essential's alleged successor and plaintiffs' tenant and business associate, in the absence of a writing showing that Pricomm had agreed with plaintiffs to assume Essential's debt on the notes (see General Obligations Law § 5-701 [a] [2]), or that the payments that Pricomm made to plaintiffs were unequivocally referable to any such agreement (see Rosenheck v Calcam Assoc., 233 AD2d 553, 554 [1996]). Concur—Buckley, P.J., Andrias, Sullivan, Ellerin and Williams, JJ.