WAVE CREST CONSTRUCTION INC v. CARTIER BERNSTEIN AUERBACH AND DAZZO (2006)

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 A.D.3d 409, 791 N.Y.S.2d 163;  Altchek v. DiGennaro, 214 A.D.2d 527, 624 N.Y.S.2d 461).   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 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.