A & L Plumbing & Heating Co. v. James Redfield Plumbing & Heating Co.

54 A.D.2d 952, 388 N.Y.S.2d 628, 1976 N.Y. App. Div. LEXIS 14853

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 22, 1976
• Status: Published

Opinion

In an action for an accounting and to recover damages for breach of contract, defendants appeal from so much of an order of the Supreme Court, Suffolk County, dated July 16, 1976, as denied their motion to dismiss the complaint on the grounds of the Statute of Frauds and failure to state a cause of action, with leave granted to assert the defense of Statute of Frauds as an affirmative defense in their answer. Order affirmed, with $50 costs and disbursements. We agree with Special Term that the conflicting versions of the facts presented by the parties indicate that the possible applicability of the Statute of Frauds should be decided at the trial. We also agree that plaintiffs’ allegations of consideration are sufficient to save the complaint from dismissal for failure to state a cause of action. Gulotta, P. J., Hopkins, Martuscello and Suozzi, JJ., concur.