Respondents move, pursuant to CPLR 3211(a)(1) and (a)(7), to dismiss the

petition against Kevin Myers, William Carlotti, and Nancy Carlotti based on documentary

evidence and the failure to state a cause of action. The petitioner opposes the motion and

the respondents have served a reply.

Petitioner is the owner of 121 Bedell Street, Hempstead, New York. It is alleged in the holdover petition that respondents A-1 Nassau Inc., Kevin Myers, William Carlotti, and Nancy Carlotti are tenants of the premises and that they entered into possession under an oral lease with petitioner on or about March of 2000. Petitioner claims that the month-to-month tenancy terminated effective September 1, 2007, and that the respondents currently owe the petitioner money.

In paragraph 6 of the petition it is claimed :

That the Respondents currently owe the Landlord the amount of five thousand six hundred ($5,600.00) dollars as and for past unpaid rent due, owing and continuing for the proceeding months of August, September, October and November 2007; Property taxes 2006-2007 including penalties and interest twenty-two thousand three hundred and sixty-[*2]five ($22,365.71) dollars and seventy-one cents due, owing and continuing; Electric one thousand six hundred and seven ($1,607.00) dollars due, owing and continuing and; water charges of one thousand ($1,000.00) dollars due, owing and continuing.

In his affidavit in support of this motion, respondent Kevin Myers states that he is the president of respondent A-1 Nassau Inc. (hereinafter A-1) and that neither he nor William and Nancy Carlotti ever entered into a rental agreement with the petitioner. He states that William and Nancy Carlotti were employees of A-1. Mr. Myers asserts that he orally agreed on behalf of A-1 to the month to month tenancy but he avers that he never agreed to be personally liable for the obligations of the A-1.

Linda Singer, who is managing member of petitioner, submits an affidavit in opposition. Ms Singer alleges that William and Nancy Carlotti agreed to rent the premises in and about March of 2000 and that "they would personally guarantee any amounts not paid by any company that they had in the premises." Then, in or about July 2005, A-1 was formed. She maintains that Kevin Myers guaranteed the payments and that he also agreed to be responsible for the payments along with William Carlotti and Nancy Carlotti. She asserts the three individuals were personally named because they actually agreed to be personally responsible for the rent.

In his affidavit in reply, William Carlotti asserts that neither he, his wife nor Kevin Myers ever entered into a written rental agreement with the petitioner, nor have any of them ever personally guaranteed the payment of any rent to petitioner. Mr. Carlotti denies ever having met Ms. Singer or having spoken to her in person. Mr. Myers also reaffirms that neither he nor Mr. and Mrs. Carlotti ever entered into a rental agreement nor personally guaranteed the payment of rent to the petitioner. He further states in his affidavit in reply that he does not know Linda Singer and has never met or spoken to her.

The issue before the Court is whether the petition should be dismissed against the respondents, Kevin Myers, William Carlotti, and Nancy Carlotti. After examining the papers submitted and the relevant law, this Court finds that the petitioner has not established that said respondents agreed to be individually responsible for the obligations of A-1 regarding the month to month tenancy at 121 Bedell Street, Hempstead, New York.

"A landlord-tenant' relationship between the parties must exist in order for the nonpayment proceeding to be successfully maintained. If such a relationship is lacking, the respondent may immediately move to dismiss the Petition on that ground, or preserve the objection as a defense in the Answer." (Finkelstein and Ferrara, Landlord and Tenant Practice in New York, §14:352, at 14-187 [West's NY Prac Series, vol F, 2007]).

The petitioner failed to submit evidence to support its claims that Kevin Myers, William Carlotti and Nancy Carlotti agreed to guarantee payment of the obligations for A-1. Even assuming that there were oral agreements between these individuals and the petitioner to guarantee payment of A-1's obligations, such oral agreements would be [*3]unenforceable because liability to answer for the debt of another must be in writing to be enforceable. (See General Obligations Law, § 5-701[2]).

In Paul, Weiss, Rifkind, Wharton & Garrison v. Westergaard, 75 NY2d 755 (1989), the court rejected attempts to impose liability for legal fees on an individual shareholder of a corporation which participated in a limited partnership, absent a written agreement to answer for the debt of the partnership under General Obligation Law, § 5-701(2).

In Alba v. Lindenman, 289 AD2d 550 ( 2nd Dept 2001), the court rejected an attempt to impose liability for an oral promise made by the co-defendant brother for the co-defendant sister's legal bill:

The plaintiff, former counsel to defendant Kathleen Lindenman, seeks to enforce an alleged oral promise made by Lindenman's brother, the codefendant Joseph Rudy, to pay for his sister's legal representation. The Supreme Court properly concluded that such a claim is barred by the Statute of Frauds, which requires that an agreement to answer for the debt of another must be in writing (see, General Obligations Law § 5-701[a][2]). Furthermore, contrary to the plaintiff's contention, Rudy's alleged partial performance, i.e., two payments totaling $3,000, was not unequivocally referable to any alleged agreement between these two parties, and thus was insufficient to remove the alleged agreement from the Statute of Frauds (see, A. Aversa Brokerage v. Honig Ins. Agency, 249 AD2d 345; Rosenheck v. Calcam Assocs., 233 AD2d 553).

See also, DeRosis v. Kaufman, 219 AD2d 376, (1st Dept 1996), and Moskowitz v. Barocco Foods, Inc., 6 Misc 3d 1005, 800 NYS2d 351 (Civ Ct New York 2004), both repeating the rule that to hold defendants liable for the debts of another must be in writing to be enforceable.

The proceeding against Kevin Myers, William Carlotti and Nancy Carlotti is dismissed with prejudice for failure to state a cause of action against them as the individuals are not proper parties to this proceeding (CPLR 3211[a][7]; Spiegler v. City of New York, 99 AD2d 958 [1st Dept 1984]). There is no evidence that these individual respondents agreed to be co-tenants with A-1 or to be guarantors of the obligations of said corporation. There was no compliance with General Obligations Law §5-701(2), which requires a written agreement to hold a defendant liable for the debts of another; oral agreements are not enforceable. Accordingly, the respondents' motion is granted.

So Ordered:

/s/

DISTRICT COURT JUDGE

Dated:April 3, 2008 [*4]

CC:Anthony P. Marchesi, Esq.

Marc Scott Kallman, P.C.

SF/mp