MIDOLLO v. DiDONATO (2006)

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Westchester County (Nastasi, J.), entered April 14, 2005, which granted the defendant's motion for summary judgment dismissing the complaint and denied his cross motion for summary judgment.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the motion and substituting therefor a provision denying that motion;  as so modified, the order is affirmed, without costs or disbursements.

The agreement in question provided, inter alia, that the plaintiff would allow a $275,000 unrecorded mortgage on the defendant's property to be converted into a recorded mortgage on his own property.   For his part, the defendant, who claimed to have purchased his property without knowledge of the unrecorded mortgage, agreed to satisfy the mortgage upon the sale of either of their properties.   The Supreme Court erred in granting the defendant's motion for summary judgment dismissing the complaint, as a question of fact exists as to whether the agreement was supported by consideration (see Rose v. N.A.M. Realty Co., 16 A.D.3d 479, 790 N.Y.S.2d 607;  Schaffer v. Schaffer, 304 A.D.2d 549, 757 N.Y.S.2d 332;  Saccente v. Lexington School for the Deaf, 228 A.D.2d 575, 644 N.Y.S.2d 323).   In addition, there is a question of fact as to the applicability of the doctrine of promissory estoppel (see Allen v. Board of Educ. of Union Free School Dist. No. 20, 168 A.D.2d 403, 563 N.Y.S.2d 422).