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CITY OF YONKERS v. OTIS ELEVATOR CO.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


May 7, 1985

City of Yonkers and Yonkers Community Development Agency, Plaintiffs,
v.
Otis Elevator Company and United Technologies Corporation, Defendant

The opinion of the court was delivered by: SPRIZZO

SPRZZO, D.J.

OPINION & ORDER

 Defendants move for summary judgment against plaintiffs, raising an assortment of defense including among others the New York Statute of Frauds, N.Y.Gen.Obl.Law ยง 5-701(a)(1). the contract alleged in the complaint, requires defendant Otis Elevator Company to stay in Yonkers for a reasonable period, but no less than sixty years. See Complaint, P 24 ("The period of time for performance by Otis and United of these obligations due to Yonkers and the Development Agency is for a reasonable time to be set by law, and is alleged to be at least sixty years."). That contract, therefore, by its terms cannot be performed within a year. *fn1"

 The Court has been directed to no memoranda signed or prepared by the defendants that is even arguably sufficient to satisfy the statute of frauds with respect to that agreement, although the Court has been provided with an extensive amount of documentation with respect to defendants' motion. It follows that the complaint, as presently drafted, must be dismissed and the defendants' motion must be granted.

 There has, however, been some confusion as to exactly what the plaintiffs now contend the contract to be. Both in the papers, and especially on oral argument of the motions, counsel for the plaintiffs maintained that the contract was for a reasonable time, that its duration was indefinite and that the Court could determine its length through appropriate proof.

 The vague and elusive nature of these claims makes it difficult, if not impossible, for the Court to adequately assess the sufficiency of the defenses made and the applicability of the parol evidence rule. There also seems to be some confusion as to what plaintiffs presently claim the precise terms and obligations of the alleged contract are. *fn2" Therefore, in the interest of justice and to afford the plaintiffs the opportunity to clarify these issues in a new pleading, the Court directs that the dismissal of the plaintiffs' complaint be without prejudice.

 The plaintiffs shall file an amended complaint on or before June 18, 1985, specifying the nature of the contract which they claim to exist, the terms and obligations of each party thereunder, whether that contract was oral or written, and its alleged duration. The defendants shall then file a motion to dismiss and/or for summary judgment on or before July 18, 1985; the plaintiffs shall respond to that motion on or before August 19, 1985; the defendants shall reply on or before October 1, 1985, and a Pre-Trial Conference shall be held on January 17, 1986 at 10:00 A.M. Plaintiffs' cross-motion for partial summary judgment is denied. It is SO ORDERED.


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