POMERANTZ v. Teena Pomerantz, Appellant.

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Supreme Court, Appellate Division, Second Department, New York.

Alberta POMERANTZ, etc., Respondent, v. Owen POMERANTZ, et al., Defendants, Teena Pomerantz, Appellant.

Decided: February 24, 1997

Before ROSENBLATT, J.P., and RITTER, COPERTINO and KRAUSMAN, JJ. Anthony V. Barbiero, P.C., Elmont, for appellant. Borden, Skidell, Fleck & Stackel, P.C., Mineola (Stephen N. Shapiro, of counsel), for respondent.

In an action, inter alia, to recover damages for breach of contract, the defendant Teena Pomerantz appeals from so much of a judgment of the Supreme Court, Nassau County (Ain, J.), entered March 6, 1996, as, upon the granting of the plaintiff's motion for summary judgment, is in favor of the plaintiff and against her in the principal sum of $250,000.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

The plaintiff, as temporary receiver for Spiral Commercial Corp. (hereinafter Spiral), commenced this action against, inter alia, the appellant Teena Pomerantz (hereinafter Teena) seeking repayment of a $250,000 loan made by Spiral to her and her former husband, the defendant Owen Pomerantz (hereinafter Owen).   The money was used by Teena and Owen to purchase a home and property in Lattingtown, New York (hereinafter the property).   Pursuant to a separation agreement dated December 3, 1990, Teena and Owen acknowledged this debt to Spiral and agreed that, out of the proceeds from the sale of the property, “the sum of $250,000 [was] to be repaid to Spiral Commercial Corp. (which moneys were borrowed at the time of the purchase of the [property] )”.   However, although the property was eventually sold, the Pomerantzs failed to satisfy the debt to Spiral from the proceeds.   Accordingly, the plaintiff commenced this action alleging, inter alia, breach of contract.   After issue was joined, the plaintiff moved for summary judgment, which was granted.   Judgment was entered against Teena and Owen in the principal sum of $250,000.   We now affirm.

The Pomerantzs breached the separation agreement by failing to repay Spiral $250,000 from the proceeds of the sale of the property.   Spiral, as an intended beneficiary of the separation agreement, had standing to enforce the separation agreement (see, Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., 66 N.Y.2d 38, 495 N.Y.S.2d 1, 485 N.E.2d 208;  Braten v. Bankers Trust Co., 60 N.Y.2d 155, 468 N.Y.S.2d 861, 456 N.E.2d 802;  Peckham Rd. Corp. v. Town of Putnam Val., 218 A.D.2d 789, 631 N.Y.S.2d 172;  Key Int. Mfg. v. Morse/Diesel, Inc., 142 A.D.2d 448, 536 N.Y.S.2d 792).   Enforcement of the separation agreement, which was in writing and subscribed by the parties against whom it was being enforced, was not barred by the Statute of Frauds (see, General Obligations Law § 5-701;  D & N Boening v. Kirsch Beverages, 63 N.Y.2d 449, 483 N.Y.S.2d 164, 472 N.E.2d 992;  Freedman v Chemical Constr. Corp., 43 N.Y.2d 260, 401 N.Y.S.2d 176, 372 N.E.2d 12).  Finally, the plaintiff's action was commenced within six years of the breach and was, therefore, timely (see, CPLR 213;  Matter of Equitable Life Assur. Soc. of U.S. v. Branch, 32 A.D.2d 959, 302 N.Y.S.2d 958).


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