Opinion
2002-02678
November 25, 2002.
December 23, 2002.
In an action to recover the proceeds of a loan, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Vaughan, J.), dated January 30, 2002, as denied that branch of his motion pursuant to CPLR 3211(b) which was to dismiss the affirmative defense of the statute of frauds.
Moshe Katlowitz, New York, N.Y. (Gerry E. Feinberg of counsel), for appellant.
Robert J. Kaplan, New York, N.Y., for respondent.
Before: MYRIAM J. ALTMAN, J.P., SONDRA MILLER, THOMAS A. ADAMS, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
Contrary to the plaintiff's contentions, he failed to demonstrate, as a matter of law, that the parties' alleged oral agreement is not barred by the statute of frauds (see General Obligations Law § 5-701; cf. Pritsker v. Soyferman, 275 A.D.2d 738). The parties dispute the very nature of the transaction as either an oral demand loan or a charitable donation to a religious school that was not to be repaid. In light of this dispute over the very terms of the oral agreement in controversy, it cannot be determined as a matter of law whether or not the statute of frauds applies (see McDaniel v. Sangenino, 67 A.D.2d 698, 699; accord Goldberg v. Select Indus., 202 A.D.2d 312, 314-315). Furthermore, an issue of fact exists as to whether General Obligations Law § 5-701(a)(10) may apply to the parties' arrangement. Accordingly, the Supreme Court correctly denied the plaintiff's motion to dismiss the affirmative defense of the statute of frauds.
ALTMAN, J.P., S. MILLER, ADAMS and COZIER, JJ., concur.