BRANDENBERG v. PRIMUS ASSOCIATES

ORDERED that the order is affirmed, with costs.

The appellants Elaine Epstein, John Jay Wanderman, and Jerome Reznick did not establish their entitlement to dismissal of the complaint insofar as asserted against them pursuant to CPLR 3211(a)(7) for failure to state a cause of action (see Campaign for Fiscal Equity v. State of New York, 86 N.Y.2d 307, 318; cf. 219 Broadway Corp. v. Alexander's, Inc., 46 N.Y.2d 506, 509). The "special agreement" for the payment of brokerage commissions to a licensed real estate broker on a lease renewal is outside the statute of frauds (see General Obligations Law § 5-701[a] [10]; Fidelity Bus. Brokers v. Gamaldi, 190 A.D.2d 709).

The Supreme Court also properly denied that branch of the appellants' motion which was to dismiss the complaint pursuant to CPLR 3211(a)(5) as barred by the doctrines of res judicata and collateral estoppel (see Matter of Halyalkar v. Board of Regents of State of N.Y., 72 N.Y.2d 261, 268) where the prior action was dismissed without prejudice (see Miller Mfg. Co. v. Zeiler, 45 N.Y.2d 956, 958) and the issue of legal sufficiency of the complaint was not "necessarily decided" therein (Matter of Halyalkar v. Board of Regents of State of N.Y., supra at 266; see Giordano v. Patel, 177 A.D.2d 468, 469).

SANTUCCI, J.P., KRAUSMAN, CRANE and MASTRO, JJ., concur.