Rogoff v. San Juan Racing Ass'n, Inc.

429 N.E.2d 418, 54 N.Y.2d 883, 444 N.Y.S.2d 911, 1981 N.Y. LEXIS 3090

• Court: New York Court of Appeals
• Decided: October 15, 1981
• Status: Published

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

At the threshold it is appellant’s contention that summary-judgment on the ground that his claims were barred by the Statute of Frauds was improperly granted because that defense had not been pleaded in the answer. Examination of the papers on the motion discloses, however, that this defense was the principal ground relied on by defendants in support of their motion and that it was fully opposed by plaintiff (both on the procedural grounds of unavailability for failure to plead and of prematurity for failure to have completed disclosure procedures, and extensively on the merits — that there were “14 written documents which collectively met the requirements of the statute,” that there had been full performance, and that the contract sued on was not subject to the statute). In this posture of the record we cannot say that it was error as a matter of law for the Appellate Division to have concluded, for the reasons stated by it, that failure expressly to have pleaded the defense in the answer did not mandate denial of defendant’s motion for summary judgment based on the statute.

Reaching the merits of the motion, then, we conclude, as did the Appellate Division, that there is not “in the record any writing or series of writings construed as a whole, which could even arguably satisfy [the] statutory requirement”.

We have examined appellant’s other contentions and find them to be without merit.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Waghtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.