Mirra v. Patterson

Appellate Division of the Supreme Court of New York

Mirra v. Patterson

57 A.D.3d 630, 868 N.Y.2d 549

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

DecidedDecember 9, 2008

StatusPublished

This text of 57 A.D.3d 630 (Mirra v. Patterson) 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.

Bluebook

Mirra v. Patterson, 57 A.D.3d 630, 868 N.Y.2d 549 (N.Y. Ct. App. 2008).

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Opinion

The defendants established their prima facie entitlement to [631]*631judgment 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 [1998]; Stillman v Kalikow, 22 AD3d 660, 662 [2005]). 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 [1999]; 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 [2003]). Rivera, J.P, Dillon, Covello and McCarthy, JJ., concur.

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The defendants established their prima facie entitlement to [631]*631judgment 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 [1998]; Stillman v Kalikow, 22 AD3d 660, 662 [2005]). 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 [1999]; 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 [2003]). Rivera, J.P, Dillon, Covello and McCarthy, JJ., concur.

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Bluebook (online)

57 A.D.3d 630, 868 N.Y.2d 549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mirra-v-patterson-nyappdiv-2008.

Opinion

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