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save you a lot of time and money.
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Supreme Court, Appellate Division,
Fourth Department, New York.
F. Christopher HUBBELL, Plaintiff-Respondent,
v.
T.J. MADDEN CONSTRUCTION CO., INC.,
Defendant-Appellant.
Sept. 29, 2006.
Background:
Employee brought breach of contract action against employer to recover
damages arising from employer's alleged failure to pay him monies due for
profit sharing and salary increases pursuant to an alleged oral agreement
of employment. The Supreme Court, Oneida County, Anthony F. Shaheen, J.,
denied employer's motion for summary judgment, and employer appealed.
Holding:
The Supreme Court, Appellate Division held that statute of frauds was not a
bar to enforcement of the alleged oral employment agreement.
Affirmed.
MEMORANDUM:
*1 Plaintiff commenced this breach of contract action to recover damages
arising from defendant's alleged failure to pay plaintiff monies due for
profit sharing and salary increases pursuant to an alleged oral agreement
of employment. Contrary to defendant's contention, Supreme Court properly
denied defendant's motion for summary judgment dismissing the complaint on
the ground that enforcement of the alleged oral agreement is barred under
the statute of frauds ( see General Obligations Law § 5-701[a][1] ), and
the court properly sua sponte dismissed the affirmative defense based on
the statute of frauds. The record establishes that the subject oral
agreement constitutes a “hiring at will, terminable at any time by either
party” ( Sabetay v. Sterling Drug, 69 N.Y.2d 329, 333, 514 N.Y.S.2d 209,
506 N.E.2d 919). Thus, “the statute of frauds is not a bar to enforcement
of the alleged oral agreement because its performance within one year was
possible” ( Air Masters v. Bob Mims Heating & Air Conditioning Serv., 300
A.D.2d 513, 515, 752 N.Y.S.2d 388; see Stucklen v. Kabro Assoc., 18 A.D.3d
461, 462, 795 N.Y.S.2d 256). Further, when “the measure of compensation has
been fixed and earned during the same [one- year] period, the sole
obligation to calculate such compensation will not bring the [agreement]
within the ··· [s]tatute of [f]rauds” ( Cron v. Hargro Fabrics, 91 N.Y.2d
362, 370, 670 N.Y.S.2d 973, 694 N.E.2d 56; see Raes v. So-Lite Furniture
Corp., 4 A.D.2d 851, 166 N.Y.S.2d 471). Here, the alleged oral agreement of
employment provided for annual compensation, profit sharing, and possible
salary increases, and thus plaintiff's rights under the agreement could be
fixed and earned within a one- year period, rendering section 5-701(a)(1)
inapplicable to the agreement.
It is hereby ORDERED that the order so appealed from be and the same hereby
is unanimously affirmed without costs.