MSL PRODUCTIONS, INC. and Gary Cioffi, Plaintiffs,
IMR GROUP LLC d/b/a Jack Russell Group, Ira Waks, Richard Rathe, Glenn Mark, Jonathan Waks, individually and in his capacity as Executor of the Estate of Ira Waks and Brooks Nelson, Defendants.
[971 N.Y.S.2d 193] Jaspan Schlesinger, LLP, Linda S. Agnew, Esq., Garden City, for plaintiffs.
Garvey Schubert Barer, LLP, Andrew J. Goodman, Esq., New York, for defendants.
VITO M. DeSTEFANO, J.
The Defendants move pursuant to CPLR 2221(d) to reargue that branch of their prior " motion for summary judgment dismissing the fifth cause of action" (breach of contract claim), which was denied in a Decision and Order of this court dated March 8, 2012 (" prior order" ), and, upon reargument, dismissing the fifth cause of action.
For the reasons that follow and to the extent outlined herein, the court grants reargument and, upon reargument, grants the branch of the Defendants' motion seeking dismissal of the fifth cause of action for breach of contract (CPLR 3211[a] ).
Initially, the court notes that in the underlying motion, the Defendants sought dismissal of the breach of contract cause of action pursuant to, inter alia, CPLR 3212. However, the court, in its prior order, denied that branch of the motion which sought summary judgment inasmuch as the Defendants failed to annex a copy of the answer to their motion papers as required by CPLR 3212(b). The instant motion, therefore, to the extent that it seeks for reargument of the branch of the prior motion for summary judgment, cannot establish that the court overlooked or misapprehended the law in this regard. 
In the underlying motion, the Defendants also sought dismissal pursuant to CPLR 3211(a)(7). Specifically, the Defendants argued that the oral agreement which is the subject of this action violated the Statute of Frauds insofar as it could [971 N.Y.S.2d 194] not be performed within one year. The court denied this branch of the motion, analyzing it under CPLR 3211(a)(7) in accordance with the parties' arguments and submissions. However, the correct analysis should have been under CPLR 3211(a)(5), which specifically lists the Statute of Frauds as a defense thereunder.
General Obligations Law § 5-701(a)(1) provides that 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 * * * if such agreement * * * by its terms is not to be performed within one year from the making thereof."
In its prior order, the court concluded that the subject agreement violated the Statute of Frauds considering that it was an oral agreement to pay commissions over a three-year period. The court, nevertheless, denied the branch of Defendants' motion seeking dismissal of the breach of contract cause of action in light of the potential applicability of the doctrine of part performance (Prior Order at pp. 4-5).
In the instant motion, the Defendants assert that the court should dismiss the breach of contract cause of action because of the numerous cases establishing that " the part performance exception does not apply to General Obligations Law § 5-701(a)(1)" (Affirmation in Support at ¶ 4).
The Defendants are correct that there is ample case law supporting the conclusion that the doctrine of part performance does not apply to General Obligations Law § 5-701, but, rather, is limited to real estate transactions (or other statutes which delineate the exception), and more specifically, to salvaging oral conveyances of real property otherwise invalid under General Obligations Law § 5-703. In this regard, the Court of Appeals has explicitly stated that it has never treated the doctrine of part performance as an exception to General Obligations Law § 5-701. Specifically, in Messner Vetere Berger McNamee Schmetterer Euro RSCG v. Aegis Group, 93 N.Y.2d 229, fn. 1, 689 N.Y.S.2d 674, 711 N.E.2d 953  [" Messner " ], the Court of Appeals noted that the part performance exception to the Statute of Frauds is " wholly grounded upon General Obligations Law § 5-703" and " that it had not recognized a parallel judicially-created part performance exception to [General Obligations Law] § 5-701" .
In Stephen Pevner, Inc. v. Ensler, 309 A.D.2d 722, 766 N.Y.S.2d 183 [1st Dept. 2003], the First Department, citing Messner, stated that the part-performance exception to the Statute of Frauds " applies to General Obligations Law § 5-703, which deals with real-estate transactions, but it has not been extended to General Obligations Law § 5-701" ( but see Carey & Associates v. Ernst, 27 A.D.3d 261, 810 N.Y.S.2d 475 [1st Dept. 2006] [court applied a part performance exception analysis to ascertain whether the plaintiff's part performance was unequivocally referable to an oral agreement which would render the agreement enforceable notwithstanding its unenforceability pursuant to General Obligations Law § 5-701(a)(2) ]; Travis v. Fallani and Cohn, 292 A.D.2d 242, 739 ...