You are here: / / ​ THE EXISTENCE OF A WRITTEN CONSULTING AGREEMENT BETWEEN THE PARTIES R...
,

​ THE EXISTENCE OF A WRITTEN CONSULTING AGREEMENT BETWEEN THE PARTIES RELATING TO SALES AND MARKETING DID NOT, PURSUANT TO THE PAROL EVIDENCE RULE, PRECLUDE EVIDENCE OF AN ALLEGED ORAL AGREEMENT BETWEEN THE SAME PARTIES RELATING TO THE FORMATION AND OWNERSHIP OF A BUSINESS (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the counterclaim for breach of an oral contract should not have been dismissed. The court explained when the parol evidence rule does not exclude evidence of an oral contract. Here there was a written consulting agreement for defendant’s marketing and sales services. The alleged oral agreement related to the formation and ownership of a company (ION):

… ” … [A] written agreement does not exclude proof of a parol collateral agreement made even between the same parties, where the written contract is not intended to embody the whole agreement and does not on its face purport to cover completely the subject-matter of the alleged collateral agreement” … . For a prior oral agreement to be enforceable, “(1) the agreement must in form be a collateral one; (2) it must not contradict express or implied provisions of the written contract; (3) it must be one that parties would not ordinarily be expected to embody in the writing; or put in another way, an inspection of the written contract, read in the light of surrounding circumstances must not indicate that the writing appears to contain the engagements of the parties, and to define the object and measure the extent of such engagement. Or again, it must not be so clearly connected with the principal transaction as to be part and parcel of it” … .

Here, the consulting agreement did not completely cover the same subject matter as the alleged oral agreement, as the alleged oral agreement related to the formation and ownership of ION and the consulting agreement only related to the compensation that Ovadia [defendant] would receive for performing certain marketing and sales services … . Further, the alleged oral agreement did not vary, alter, or supplement any terms of the consulting agreement, which did not address ownership interests in ION … . Moreover, it would not ordinarily be expected that the subject matter of the alleged oral agreement would be addressed in the consulting agreement … . Parizat v Meron, 2024 NY Slip Op 04776, Second Dept 10-2-24

Practice Point: Consult this decision for a clear explanation of the application of the parol evidence rule. Here evidence of an alleged oral contract between the parties was not precluded by the existence of a written consulting agreement because the two agreements covered different subjects and the terms did not conflict.

 

You might also like
IN THE ABSENCE OF AN ORDER SUBSTITUTING THE BANKRUPTCY TRUSTEE FOR THE PLAINTIFF-DEBTOR, THE DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT SHOULD HAVE BEEN GRANTED; SUPREME COURT SHOULD NOT HAVE DENIED DEFENDANTS’ MOTION AND DIRECTED PLAINTIFF TO SEEK RELIEF FROM THE BANKRUPTCY COURT (SECOND DEPT).
PLAINTIFF SERVED THE COMPLAINT ON NOVEMBER 27, 2018; DEFENDANT ATTEMPTED TO SERVE AN ANSWER, WHICH WAS REJECTED, ON JANUARY 9, 2019; DEFENDANT’S EXCUSE WAS “THE DELAY WAS CAUSED BY THE INSURANCE CARRIER;” THAT EXCUSE WAS INSUFFICIENT AND DEFENDANT’S MOTION TO COMPEL PLAINTIFF TO ACCEPT THE ANSWER SHOULD HAVE BEEN DENIED (SECOND DEPT).
Neighborhood Association Had Standing to Contest Planning Board’s Negative Finding (Re: a Construction Project) After a SEQRA Review
PLAINTIFF, A TRAFFIC ENFORCEMENT OFFICER, WAS WALKING IN THE STREET WHEN DEFENDANT STRUCK HIM AFTER TAKING HIS EYES OFF THE ROAD, PLAINTIFF DID NOT HAVE TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​
THE EIGHT-INCH WIDE BEAM CLAIMANT WAS MOVING ALONG WHEN HE FELL WAS THE FUNCTIONAL EQUIVALENT OF A SCAFFOLD, BRINGING THE ACTION WITHIN THE SCOPE OF LABOR LAW 240(1); THE SAFETY LINE PROVIDED TO CLAIMANT DID NOT PROTECT HIM FROM THE FALL; CLAIMANT WAS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).
Plaintiff Who Fell From Scaffolding Which Did Not Have Safety Rails Entitled to Summary Judgment on His Labor Law 240(1) Cause of Action
THE CITY DID NOT DEMONSTRATE THE SALARY PROMISED PLAINTIFF AT THE OUTSET WAS A MISTAKE WHICH HAD BEEN CORRECTED, THE CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED; PLAINTIFF’S CROSS MOTION FOR SUMMARY JUDGMENT ON HER BREACH OF CONTRACT ACTION SHOULD HAVE BEEN GRANTED; SUPREME COURT’S ANALYSIS UNDER AN “AT-WILL EMPLOYEE” THEORY WAS NOT APPLICABLE (SECOND DEPT).
BANK DID NOT SUBMIT SUFFICIENT EVIDENCE OF ITS STANDING, ITS COMPLIANCE WITH CONDITIONS PRECEDENT IN THE MORTGAGE, OR ITS COMPLIANCE WITH THE NOTICE REQUIREMENTS OF THE RPAPL, THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

SUPREME COURT’S VACATION OF THE ARBITRATION AWARD AS “IRRATIONAL”... THE FACT THAT THE POLICE WERE AWARE THE VAN THEY STOPPED HAD REPORTEDLY BEEN...