THE PRE-ANSWER, PRE-DISCOVERY MOTION TO DISMISS SHOULD NOT HAVE BEEN CONVERTED TO A SUMMARY JUDGMENT MOTION; QUESTIONS OF FACT ABOUT WHETHER THERE WAS A DE FACTO MERGER OF TWO CORPORATIONS; QUESTION OF FACT WHETHER PART PERFORMANCE BY INACTION SATISFIED THE STATUTE OF FRAUDS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined (1) the pre-answer, pre-discovery motion to dismiss should not have been converted to a summary judgment motion; (2) there were questions of fact about whether there was a de facto merger of two defendant corporations; and (3) there was a question of fact whether the breach of contract action was barred by the statute of frauds (part performance). The “de facto merger” and “part performance” discussions are substantive and too detailed to summarize here. The Second Department noted that even inaction will satisfy part performance of a contract when inaction is a term of the oral agreement:

Supreme Court erred in converting the motion to dismiss to one for summary judgment (see CPLR 3211[c] … ). The plaintiff objected to this procedure on the ground that he had not received any discovery, and no preliminary conference had taken place due to the pendency of the motion to dismiss, which was made only one month after this action was commenced. Indeed, a motion for summary judgment is premature when a party had no reasonable opportunity to conduct discovery, and discovery may result in disclosure of evidence relevant to the causes of action asserted in the complaint (see CPLR 3212[f] … ). Here, issue was not yet joined and there had been no opportunity to engage in discovery regarding the plaintiff’s allegations of successor liability and fraud with respect to the apparent transformation of [defendant] Labs into [defendant] Diagnostics. Therefore, converting the motion to dismiss into a motion for summary judgment was premature.

… The defendants’ evidence did not establish as a matter of law that Diagnostics was not the de facto continuation of Labs … . * * *

Part performance in the form of inaction may … suffice to invoke the doctrine, if inaction is pleaded as a term of the oral agreement and alleged to be unequivocally referable to the oral agreement, and the element of detrimental reliance is present … . … [D]efendants failed to demonstrate … that the plaintiff did not partially perform by refraining from seeking to confirm the arbitration award, thereby rendering the statute of frauds inapplicable. Menche v CDx Diagnostics, Inc., 2021 NY Slip Op 05964, Second Dept 11-3-21