Pirrelli v. Schiavone Construction Co.

Appellate Division of the Supreme Court of New York

Pirrelli v. Schiavone Construction Co.

140 A.D.2d 596, 529 N.Y.S.2d 2, 1988 N.Y. App. Div. LEXIS 5650

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

DecidedMay 23, 1988

StatusPublished

This text of 140 A.D.2d 596 (Pirrelli v. Schiavone Construction Co.) 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

Pirrelli v. Schiavone Construction Co., 140 A.D.2d 596, 529 N.Y.S.2d 2, 1988 N.Y. App. Div. LEXIS 5650 (N.Y. Ct. App. 1988).

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Opinion

An oral agreement which provides for payment of an amount which is not to be determined within one year from the making of the agreement, inconsistent with the written employee benefit plans incorporated by reference into an oral employment agreement, is proscribed by the Statute of Frauds where such payment is to be made out of a profit-sharing plan. Such is so even if it is characterized as "severance pay” (see, General Obligations Law § 5-701).

Moreover, even if the Statute of Frauds does not apply, an oral agreement which modifies written employee benefit plans governed by the Employee Retirement Income Security Act of 1974 (29 USC § 1001) is illegal and unenforceable (see, Nachwalter v Christie, 805 F2d 956). Lawrence, J. P., Kunzeman, Eiber and Balletta, JJ., concur.

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An oral agreement which provides for payment of an amount which is not to be determined within one year from the making of the agreement, inconsistent with the written employee benefit plans incorporated by reference into an oral employment agreement, is proscribed by the Statute of Frauds where such payment is to be made out of a profit-sharing plan. Such is so even if it is characterized as "severance pay” (see, General Obligations Law § 5-701).

Moreover, even if the Statute of Frauds does not apply, an oral agreement which modifies written employee benefit plans governed by the Employee Retirement Income Security Act of 1974 (29 USC § 1001) is illegal and unenforceable (see, Nachwalter v Christie, 805 F2d 956). Lawrence, J. P., Kunzeman, Eiber and Balletta, JJ., concur.

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Bluebook (online)

140 A.D.2d 596, 529 N.Y.S.2d 2, 1988 N.Y. App. Div. LEXIS 5650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pirrelli-v-schiavone-construction-co-nyappdiv-1988.

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