BUSINESS FUNDING CORP v. Brecker & Merryman, Inc., Defendants-Respondents. (1997)

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered June 5, 1996, which, in an action to recover a debt brought by its assignee, granted defendant debtor's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, with costs.

The IAS court correctly held that defendant creditor's assignment to plaintiff of the debt owing to the creditor by defendant debtor did not constitute consideration for the debtor's alleged promise to plaintiff to pay the debt directly to plaintiff, and that this is true regardless of whether the promise was made before or after the assignment.   As the IAS court stated, the alleged promise was “gratuitous”;  in exchange for the debtor's promise to pay plaintiff, plaintiff did not agree to do anything (see, Curtis Props. Corp. v. Greif Cos., 212 A.D.2d 259, 264, 628 N.Y.S.2d 628).   In any event, the debtor, which is in the business of management consulting, denies that the alleged promisor, an employee, had authority to make this kind of promise on its behalf, and plaintiff fails to adduce any proof of words or conduct by plaintiff's principals that could have given rise to the appearance and reasonable belief that the employee had such authority (see, Hallock v. State, Power Authority, 64 N.Y.2d 224, 231, 485 N.Y.S.2d 510, 474 N.E.2d 1178).   We have considered plaintiff's other contentions and find them to be without merit.

MEMORANDUM DECISION.