Sutton v. R. H. Macy Co.

104 A.D.2d 305, 478 N.Y.S.2d 640, 1984 N.Y. App. Div. LEXIS 19775

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 2, 1984
• Status: Published

Opinion

— Order, Supreme Court, New York County (Alfred M. Ascione, J.), entered January 12, 1984, which, inter alia, denied defendants’ motions for summary judgment dismissing the first and second causes of action of the complaint, unanimously affirmed, without costs or disbursements, without prejudice to renewal after plaintiffs have been afforded a reasonable opportunity for disclosure limited to discovering the existence of any writing or document which may satisfy the Statute of Frauds.

On this record, we are unable to discern whether a writing exists which would satisfy the Statute of Frauds (General Obligations Law, § 5-701, subd a, par 1). It appears that there has been no discovery by plaintiffs, the motions for summary judgment having stayed disclosure pursuant to CPLR 3214 (subd [b]). The only discovery thus far was by defendants, directed at plaintiffs, in the form of answers to interrogatories, as disclosed at oral argument. Under the circumstances, we are in agreement that plaintiffs ought to be afforded a reasonable opportunity to conduct limited disclosure on the issue of the existence of writings or documents sufficient to satisfy the Statute of Frauds, particularly considering that defendants are corporations, which would ordinarily be expected to act in accordance with resolutions duly adopted by their respective boards of directors and by authorized acts of officers, agents and employees. On this basis, we have not considered the merits of the Statute of Frauds defense interposed by defendants. Concur — Kupferman, J. P., Asch, Silverman and Kassal, JJ.