SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT
December 9, 2008
SALVATORE MIRRA, RESPONDENT,
PAUL PATTERSON, ET AL., APPELLANTS.
In an action, inter alia, to recover damages for breach of an oral agreement, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schack, J.), dated September 21, 2007, as denied that branch of their motion which was for summary judgment dismissing the complaint.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
REINALDO E. RIVERA, J.P., MARK C. DILLON, JOSEPH COVELLO and WILLIAM E. McCARTHY, JJ.
(Index No. 6725/07)
DECISION & ORDER
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
The defendants established their prima facie entitlement to judgment as a matter of law by showing that the alleged oral agreement was unenforceable under the statute of frauds because it was not subscribed in writing by the defendant Paul Patterson and was not capable of being performed within one year (see General Obligations Law § 5-701[a]; Cron v Hargro Fabrics, 91 NY2d 362, 366; Stillman v Kalikow, 22 AD3d 660, 662). In opposition, the plaintiff, by his affidavit, raised a triable issue of fact as to whether the statute of frauds barred the action, asserting, in effect, that "although the agreement was capable of an indefinite continuance, the agreement could have been fully performed within a year of the making thereof" (Radnay v Charge & Ride, 266 AD2d 194, 196; see Cron v Hargro Fabrics, 91 NY2d at 366; Stillman v Kalikow, 22 AD3d at 662; Zuccarini v Ziff-Davis Media, 306 AD2d 404, 405).
RIVERA, J.P., DILLON, COVELLO and McCARTHY, JJ., concur.
© 1992-2008 VersusLaw Inc.