From Casetext: Smarter Legal Research

Mirra v. Patterson

Appellate Division of the Supreme Court of New York, Second Department
Dec 9, 2008
57 A.D.3d 630 (N.Y. App. Div. 2008)

Opinion

No. 2007-09921.

December 9, 2008.

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.

Regina Felton, Brooklyn, N.Y., for appellants.

Before: Rivera, J.P., Dillon, Covello and McCarthy, JJ. concur.


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] [1]; 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).


Summaries of

Mirra v. Patterson

Appellate Division of the Supreme Court of New York, Second Department
Dec 9, 2008
57 A.D.3d 630 (N.Y. App. Div. 2008)
Case details for

Mirra v. Patterson

Case Details

Full title:SALVATORE MIRRA, Respondent, v. PAUL PATTERSON et al., Appellants

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 9, 2008

Citations

57 A.D.3d 630 (N.Y. App. Div. 2008)
2008 N.Y. Slip Op. 9762
868 N.Y.S.2d 549