Majority
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in dismissing the complaint on the ground that plaintiff’s cause of action is barred by the Statute of Frauds (see, General Obligations Law § 5-701 [a] [1]). The Statute applies only to agreements that, by express and specific agreement, are not to be performed within one year (Banker’s Trust Co. v Steenburn, 95 Misc 2d 967 , 984, affd 70 AD2d 786 ). It does not apply to an agreement that appears by its terms to be fully capable of performance within one year
The court properly denied, however, plaintiffs motion for summary judgment. Defendant submitted evidentiary proof in admissible form of material questions of fact sufficient to require a trial (see, Zuckerman v City of New York, 49 NY2d 557 , 562; CPLR 3212 [b]).
Thus, we modify the order appealed from by denying defendant’s cross motion to dismiss the complaint and otherwise affirm. (Appeal from Order of Supreme Court, Monroe County, Calvaruso, J.—Summary Judgment.) Present—Balio, J. P., Lawton, Callahan, Doerr and Boehm, JJ.
Cases cited
- Banker's Trust Co. v. Steenburn 95 Misc 2d 967 at 984 p. 918
- D & N Boening, Inc. v. Kirsch Beverages, Inc. 63 NY2d 449 at 45545 p. 919
- North Shore Bottling Co. v. C. Schmidt & Sons, Inc. 22 NY2d 171 at 176 p. 919
- Zuckerman v. City of New York 49 NY2d 557 at 562 p. 919