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GEORGE SCHECK v. CONNIE FRANCIS ET AL. (11/20/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 1969.NY.43554 <http://www.versuslaw.com>; 305 N.Y.S.2d 217; 33 A.D.2d 91 November 20, 1969 GEORGE SCHECK, RESPONDENT,v.CONNIE FRANCIS ET AL., APPELLANTS Appeal from so much of an order of the Supreme Court at Special Term (Amos Bowman, J.), entered June 23, 1969 in New York County as denied defendants' motion to dismiss the complaint. Howard Breindel of counsel (Regan Goldfarb Powell & Quinn, attorneys), for appellants. Solomon Granett of counsel (Halperin, Morris, Granett & Cowan, attorneys), for respondent. Eager, J. Stevens, P. J., Capozzoli, Markewich and Nunez, JJ., concur. Author: Eager


Appeal from so much of an order of the Supreme Court at Special Term (Amos Bowman, J.), entered June 23, 1969 in New York County as denied defendants' motion to dismiss the complaint.

Eager, J. Stevens, P. J., Capozzoli, Markewich and Nunez, JJ., concur.

Author: Eager

 The individual defendant is a well-known theatrical performer and she is the sole stockholder of the three corporate defendants which were organized and exist for the purpose of exploiting and carrying on her business interests as a performer. The plaintiff has acted as manager of the individual defendant for many years under a series of written contracts, the latest of which expired on January 4, 1967. Thereafter, the plaintiff did render services for the individual defendant and her corporations and negotiations were carried on between the plaintiff and one Levin, as attorney for the defendants, for the making of a new contract between the parties. Certain proposed contracts were prepared by the attorney but were not signed. Eventually, however, on or about April 1, 1968, an oral agreement was allegedly made between the parties for the employment of the defendant for a period of five years. Thereafter, Mr. Levin prepared four written contracts (one between the plaintiff and each of the four defendants, and on April 15, 1968 he transmitted the contracts as prepared, to the plaintiff with a letter, signed by him, reading:

"Enclosed, in quadruplicate, are the employment agreements between you and GGC Productions Corp., Connie Francis Antigony Music Ltd., and Brookings Music Inc. Please sign all copies, have Connie sign all copies and distribute the copies as follows:

"One set to me

"One set for the office

"One set for you

"One set for Sol Granett [the plaintiff's attorney]

"If you have any questions or comments, please call me."

Following the receipt of the contract forms, the plaintiff signed all four of them and delivered them to the individual defendant. The plaintiff claims that this was done within a few days after he received the papers but the individual defendant testified that she believed that this occurred a number of months after plaintiff received them and after defendant knew that she intended to terminate her relationship with him. In any event, the contracts were never executed by defendants and, in August, 1968, the plaintiff's services were terminated. Thereafter this action was brought against the defendants to recover for breach of an alleged agreement for the employment of plaintiff for a five-year term as provided for in the contract forms enclosed with the attorney's letter.

The defendants urge that the Statute of Frauds is a defense to the action but Special Term has denied a motion made pursuant to CPLR 3211 (subd. [a], pars. 5 and 7), with leave to defendants to assert the statute as a defense in their answer.

The applicable Statute of Frauds is section 5-701 of General Obligations Law which, insofar as relevant, provides:

"Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful ...


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