Silberstein v. Production Fashions, Ltd.

137 A.D.2d 805, 525 N.Y.S.2d 267, 1988 N.Y. App. Div. LEXIS 1905

Opinion

In an action, inter alia, for an accounting, the defendants appeal from an order of the Supreme Court, Kings County (Morton, J.), dated October 10, 1986, which granted the plaintiff’s motion to vacate his default in answering counterclaims and denied their cross motion for summary judgment.

Ordered that the order is affirmed, with costs.

The plaintiff’s motion to vacate his default in answering defendants’ counterclaims was properly granted. The plaintiff showed a meritorious defense, excusable neglect and an intent to defend the allegations against him. Moreover, the defendants failed to demonstrate that they were prejudiced by the delay which was of relatively short duration. Given these factors, the court was justified in exercising its discretion to allow resolution of the dispute on the merits (see, Stolpiec v Wiener, 100 AD2d 931).

The motion for summary judgment was properly denied. The Statute of Frauds (General Obligations Law § 5-701) does not bar the plaintiffs action on the oral agreement. The plaintiff alleges that the parties orally agreed to form a corporation and divide its stock equally. The agreement contemplates organizing a corporation and issuing and delivering stock to the parties. Therefore, it could be performed within one year.

In addition, summary. judgment was properly denied because the conflicting affidavits raised numerous issues of fact, including the specific terms of the agreement and whether the plaintiff performed his obligations thereunder. Thompson, J. P., Brown, Lawrence and Weinstein, JJ., concur.