Summary
In Gerry's Foods of Oceanside v. Blue Ridge Farms, 292 A.D.2d 417, 738 N.Y.S.2d 891 [2d Dept. 2002], the Second Department reversed the Supreme Court's order which held that the doctrine of part performance was inapplicable to the parties' alleged oral agreement.
Summary of this case from MSL Prods., Inc. v. IMR Grp. LLCOpinion
01-04644
February 15, 2002
March 11, 2002.
In an action, inter alia, to recover damages for breach of an oral contract, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Vaughan, J.), dated March 27, 2001, as granted that branch of the defendants' motion which was for summary judgment dismissing the first cause of action.
Ira Daniel Tokayer, New York, N.Y., for appellants.
Glenn Backer, New York, N.Y., for respondents.
GABRIEL M. KRAUSMAN, J.P., LEO F. McGINITY, HOWARD MILLER, and THOMAS A. ADAMS, JJ.
ORDERED that the order is reversed insofar as appealed from, with costs, and that branch of the defendants' motion which was for summary judgment dismissing the first cause of action is denied.
The Supreme Court erred in concluding, as a matter of law, that the doctrine of partial performance was inapplicable to the parties' alleged oral agreement, which was reduced to writing but not signed. There are issues of fact as to whether the parties' actions, including the transfer of assets and payment of royalties, constituted partial performance unequivocally referable to the unexecuted sales agreement, thereby removing the agreement from the Statute of Frauds (see, CPLR 3212[b]; Planet Waste Mgt. v. Computer Assocs. Intl., 269 A.D.2d 376; Whitehorn Assocs. v. One Ten Brokerage, 264 A.D.2d 516; Chaudhry v. Abadir, 261 A.D.2d 498; Sarcona v. DeGiaimo, 226 A.D.2d 1143; Spodek v. Riskin, 150 A.D.2d 358).