In this action to recover upon a written guarantee ("Guarantee"), defendant The Estate of Hirsch Wolf ("The Estate") moves to dismiss the complaint on a number of grounds.

Moreover, the statutes relied upon by defendant merely prohibit the payment of rebates which are not provided for in the contract or policy (see, e.g., as noted above, §§ 2324 and 4224(c), prohibiting brokers from paying "any valuable consideration or inducement whatever not specified in such policy or contract").^[FN1] Thus, without a copy of the policy, the Court [*4]cannot determine whether the Guarantee was reflected within the policy and whether it was statutorily prohibited or not (cf. McGee v Felter, 75 Misc 349, 356 [County Ct, Kings County 1912])("The vice is not in the giving of a rebate, inducement, or consideration, but the giving of any rebate, inducement, or consideration not specified in the policy."). As copies of the insurance policies have not been produced, the Court is unable to make a determination as to the legality or illegality of the Guarantee.

Defendant's remaining arguments offered in support of its motion to dismiss the first cause of action are without merit. Defendant argues that the Guarantee lacked consideration and was merely a gratuitous promise as the letter references the fact that plaintiffs had already renewed their policy with HITNY. However, even if the Guarantee was signed after the renewal of the policy, the renewal of the policy would constitute valid consideration, as the signing of the Guarantee and the promise to renew were part of the same transaction (see Michelin Mgt. Co. v Mayaud, 307 AD2d 280, 281 [2d Dept 2003])(although guarantee and lease not executed on same day, they were part of same transaction, and no additional consideration needed to render guarantee valid). As plaintiffs have pleaded that the Guarantee was offered as inducement to renewal the policy, they have sufficiently pleaded the presence of adequate consideration.

Defendant's contention, that evidence of the purported Guarantee by Wolf is barred by the Statute of Frauds and that Wolf was not the proper defendant to name because the Guarantee is unenforceable as to Wolf since he did not sign it in his personal capacity, is without merit as a copy of the Guarantee, signed by Wolf, explicitly states that "should there be an assessment for the 2003-2004 policy year, Hirsch Wolf & Company, and/or Hirsch Wolf personally, will contribute 50% of your share." The specific provision stating that Wolf would contribute personally belies plaintiffs' argument that Wolf did not purport to bind himself to the Guarantee (see Westminster Constr. Co. v Sherman, 160 AD2d 867, 868 [2d Dept 1990]).)

Defendant also argues that the action must be dismissed as premature because plaintiffs are parties to a separate proceeding with HITNY, Healthcare Industry Trust of New York v Compensation Risk Managers, et al., (Sup Ct, Albany County, Index No. 5966/2009), contesting the subject assessment. However, as plaintiffs claim, in the complaint, that they are liable to the Board for the assessments, and indeed have already paid $554,656.53, they have pleaded the existence of damages sufficient to bring an action against defendant.

Finally, defendant argues that the action must be dismissed for failure to state a cause of action as to all plaintiffs except Cliffside because the Guarantee letter was addressed only to Cliffside. A review of the letter, however, reveals that the subject line references "Workers Compensation for Cliffside, Woodcrest, and Forest View." Plaintiff has sufficiently pleaded that the Guarantee was extended to all plaintiffs, and defendant has failed to establish, through documentary evidence, that it was not.

Accordingly, defendant's motion is denied with respect to the first cause of action without prejudice to renewing the argument of illegality in a motion for summary judgment following discovery, if appropriate.

Defendant also moves to dismiss plaintiffs' second cause of action. In its second cause of [*5]action, plaintiffs seek to recover for negligent misrepresentation, arguing that, if the Guarantee cannot be enforced as illegal, Wolf was charged with knowledge of that illegality, and by issuing the Guarantee, he misrepresented to plaintiffs that they could recover a portion of any premiums subsequently assessed, thus inducing them to place insurance policies with HITNY for the 2003-2004 policy years and in subsequent years.

Contrary to defendant's contentions, the basis for plaintiffs' negligent misrepresentation claim is not a contract void under the statute of frauds, nor are plaintiffs' assertions about communications with Wolf, now deceased, barred by the Dead Man's Statute, as only testimony at trial is barred by that statute (see Phillips v Joseph Kantor & Co., 31 NY2d 307, 315 [1972](permitting consideration of evidence in summary judgment motion that would be barred by Dead Man's Statute at trial). As plaintiff has stated a cause of action for misrepresentation in "sufficient detail to clearly inform [the] defendant with respect to the incidents complained of . . ." (Pike v New York life Ins. Co., 72 AD3d 1043, 1050 [2d Dept 2010]), defendant's motion is denied with respect to plaintiff's second cause of action.

Defendant's motion to dismiss the complaint is denied. Defendant is directed to answer within 20 days of service of this Decision and Order.

This constitutes the decision and order of the Court.

E N T E R:

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HON. CAROLYN E. DEMAREST, J.S.C.