Perini v Sabatelli

[*1] Perini v Sabatelli 2007 NY Slip Op 51418(U) [16 Misc 3d 1114(A)] Decided on July 12, 2007 Supreme Court, Nassau County Austin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 12, 2007
Supreme Court, Nassau County

Bernard Perini, Plaintiff,

against

Mary Sabatelli, Defendant,



2119-06



COUNSEL FOR PLAINTIFF

Lefkowitz, Hogan & Cassell, LLP

350 Jericho Turnpike, Suite 100

Jericho, New York 11753

COUNSEL FOR DEFENDANT

Kressel, Rothlein, Walsh & Roth, LLC

684 Broadway

Massapequa, New York 11758

Leonard B. Austin, J.

Defendant Mary T. Sabatelli ("Sabatelli") moves for summary judgment dismissing the complaint.

BACKGROUND

In or about 1983, Plaintiff Bernard J. Perini ("Perini") became employed as the general manager of P & F Trucking, Inc. ("P&F") and Sabco Leasing Corp. ("Sabco").

In 1989, Perini became the general manager of OBHA Realty Corp. ("OBHA"). Apparently there was no written employment agreement with regard to any of these entities

Sabatelli was the principal of P&F, Sabco and OBHA.

In or about 1996, P&F, Sabco and OHBA encountered severe financial problems. Perini alleges that he entered into an oral agreement with Sabatelli whereby a large portion of his salary would be deferred until after Sabatelli sold P&F and/or Sabco or their assets.

Perini continued to work during 1996 and 1997. He resigned as general manager of these corporations effective December 31, 1997. He alleges that, as of the date of his resignation, he was due deferred salary of $246,946.

Perini continued to work for OBHA through May 31, 2002. Perini alleges that he had the same oral agreement regarding deferral of his salary from OBHA as he had with P&F and Sabco. Perini alleges that, as of the date he terminated his employment with OBHA, he was owed $207,000 in deferred salary.

Perini alleges that Sabatelli entered into similar deferred compensation agreements with other key employees of P&F, Sabco and OBHA. When these

corporations were sold in 2002, all of the employees who had agreed to deferred compensation were allegedly paid in full except Perini.

Perini alleges that Sabatelli personally undertook to pay Perini's deferred compensation when P&F, Sabco and OBHA were sold. Sabatelli alleges that these were, at most, corporate obligations. She asserts that Perini is seeking to hold her liable as a guarantor of a corporate obligation which she asserts is barred by the Statute of Frauds.

DISCUSSION

General Obligations Law §5-701(a)(2) requires that any promise to answer for the debt of another must be in writing subscribed by the party to be charged. "An oral promise to guarantee the debt of another is barred by the Statute of Frauds." Karl Ehmer Forest Hills Corp. v. Gonzalez, 159 AD2d 613 (2nd Dept. 1990). See, Al Sayegh Bros. Trading (LLC) v. Doral Trading & Export, Inc., 219 F. Supp. 285, 293 (E.D.NY 2002)

To be taken out of the Statute of Frauds, "...the promise must represent an independent duty of payment, irrespective of the liability of the principal debtor, and second, the promise must be based upon new consideration which moves the promisor and is beneficial to him. (Martin Roofing v. Goldstein, 60 NY2d 262)." Id. See, Bart & Schwartz v. Teller, 228 AD2d 630 [*2](2nd Dept. 1996).

In this case, Perini agreed to a deferral of his salary pending the corporations' return to fiscal health, the sale of the corporations or the sale of the corporate assets. Sabatelli clearly intended that payment of the deferred compensation, if any, would be made from corporate funds or funds received on the sale of the corporations or the corporate assets. There is no evidence that Sabatelli undertook an independent and primary obligation to pay Perini. P&F, Sabco and OHBA were not relieved of their obligataion by virtue of Sabatelli's alleged promise. In such circumstances, the claim is barred by the Statute of Frauds. Id.

The cases relied upon by Plaintiff are distinguishable. In each of those cases, the courts found that the corporate shareholder or officer who was being held personally liable for a corporate debt had undertaken independent and primary obligations to pay the corporate debt or obligation. See, Paribas Properties, Inc. v. Benson, 146 AD2d 522 (1st Dept. 1989); Rowan v. Brady, 98 AD2d 638 (1st Dept. 1983); and Isenberg v. H. Colter Co., Inc., 1996 U.S. Dist. Lexis 3385 (S.D.NY 1996). That is not the case here.

Even though other employees who agreed to deferred compensation have been paid, there is no evidence before the Court that payment was made from anything other than corporate funds. No basis for personal liability on the part of Sabetelli has been presented.

Accordingly, it is,

ORDERED, that Defendant's motion for summary judgment is granted and the complaint is hereby dismissed.

This constitutes the decision and Order of the Court.

Dated: Mineola, NY_____________________________

July 12, 2007Hon. LEONARD B. AUSTIN, J.S.C.

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