Appeal by defendant The Dime Savings Bank from an order of the Civil Court, Queens County (J. Golia, J.), entered December 4, 2002, which denied its motion for summary judgment.

Order unanimously reversed without costs and motion by defendant The Dime Saving Bank for summary judgment granted dismissing the action as against it.

In this action to recover the balance due under a home improvement contract, plaintiff cannot hold the homeowner's lending institution liable since it was not a party thereto (see Outrigger Constr. Co. v Bank Leumi Trust Co. of N.Y., 240 AD2d 382 [1997]). In addition, we note that since plaintiff failed to present any evidence of a writing signed by the lender agreeing to act as guarantor of payment and inasmuch as the moving defendant specifically denied the existence of such a writing and raised said defense in its papers, any alleged oral guarantee is void (see General Obligations Law § 5-701 [a] [2]). Finally, based on the documents and affidavits submitted herein, it is apparent that plaintiff cannot assert a claim based on the theory that he is an intended beneficiary of the loan agreement between defendants (see State of California Pub. Employees' Retirement Sys. v Shearman & Sterling, 95 NY2d 427, 434-435 [2000]; Bums Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 336 [1983]; see also 22 NY Jur 2d, Contracts § 302).
Decision Date: December 17, 2003