McCooey v. Forstmann Leff Associates, Inc.

Appellate Division of the Supreme Court of New York

McCooey v. Forstmann Leff Associates, Inc.

190 A.D.2d 624, 594 N.Y.S.2d 13, 1993 N.Y. App. Div. LEXIS 1688

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 25, 1993

StatusPublished

Cited by2 cases

This text of 190 A.D.2d 624 (McCooey v. Forstmann Leff Associates, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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McCooey v. Forstmann Leff Associates, Inc., 190 A.D.2d 624, 594 N.Y.S.2d 13, 1993 N.Y. App. Div. LEXIS 1688 (N.Y. Ct. App. 1993).

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Opinion

— Order, Supreme Court, New York County (Karla Moskowitz, J.), entered December 11, 1991, which granted defendants’ motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint, unanimously affirmed, without costs.

The alleged oral agreement sued upon by plaintiff is one for a finder’s fee and therefore unenforceable because General Obligations Law § 5-701 (a) (10) bars an oral agreement "to pay compensation for services rendered in negotiating * * * a business opportunity” (Freedman v Chemical Constr. Corp., 43 NY2d 260, 267, citing Minichiello v Royal Business Funds Corp., 18 NY2d 521, 527).

Moreover, the alleged oral agreement was, by its terms, incapable of performance within one year, and thus, under General Obligations Law § 5-701 (a) (1) voidable absent a writing signed by the party to be charged (D & N Boening v Kirsch Beverages, 63 NY2d 449). Where, as here, the alleged oral agreement may only be terminated within one year upon a breach thereof or non-performance, the New York Court of Appeals has held such an agreement is not terminable at will, but rather that such action would constitute a destruction of the contract, and that the agreement is not exempt from the Statute of Frauds (supra, at 456; McCollester v Chisholm, 104 AD2d 361, affd 65 NY2d 891).

We have reviewed the plaintiff’s remaining claims and find them to be without merit. Concur — Murphy, P. J., Carro, Rosenberger and Asch, JJ.

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— Order, Supreme Court, New York County (Karla Moskowitz, J.), entered December 11, 1991, which granted defendants’ motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint, unanimously affirmed, without costs.

The alleged oral agreement sued upon by plaintiff is one for a finder’s fee and therefore unenforceable because General Obligations Law § 5-701 (a) (10) bars an oral agreement "to pay compensation for services rendered in negotiating * * * a business opportunity” (Freedman v Chemical Constr. Corp., 43 NY2d 260, 267, citing Minichiello v Royal Business Funds Corp., 18 NY2d 521, 527).

Moreover, the alleged oral agreement was, by its terms, incapable of performance within one year, and thus, under General Obligations Law § 5-701 (a) (1) voidable absent a writing signed by the party to be charged (D & N Boening v Kirsch Beverages, 63 NY2d 449). Where, as here, the alleged oral agreement may only be terminated within one year upon a breach thereof or non-performance, the New York Court of Appeals has held such an agreement is not terminable at will, but rather that such action would constitute a destruction of the contract, and that the agreement is not exempt from the Statute of Frauds (supra, at 456; McCollester v Chisholm, 104 AD2d 361, affd 65 NY2d 891).

We have reviewed the plaintiff’s remaining claims and find them to be without merit. Concur — Murphy, P. J., Carro, Rosenberger and Asch, JJ.

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Bluebook (online)

190 A.D.2d 624, 594 N.Y.S.2d 13, 1993 N.Y. App. Div. LEXIS 1688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccooey-v-forstmann-leff-associates-inc-nyappdiv-1993.

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