Contract Could Potentially Be Performed Within a Year—Dismissal on Statute of Fraud Grounds Properly Denied

The Fourth Department affirmed the denial of defendant’s motion to dismiss the complaint on the ground that the oral agreement violated the statute of frauds.  The court determined the contract was capable of being performed within a year:

“As long as [an] agreement may be fairly and reasonably interpreted’ such that it may be performed within a year, the [s]tatute of [f]rauds will not act as a bar [to enforcing it] however unexpected, unlikely, or even improbable that such performance will occur during that time frame” … . Here, although the parties’ original agreement provided that the purchase price would be paid in monthly installments over a period of five years, the agreement was revised to provide that if plaintiff, inter alia, transferred the accounting practice or ceased to practice for a period of 30 days, plaintiff would owe defendant the remainder of the purchase price in a lump sum. Thus, because plaintiff could have fully performed the alleged agreement within the first year by paying defendant such a lump sum, defendant did not meet her burden of establishing that the statute of frauds renders the agreement void and unenforceable … . Stevens v Perrigo, 2014 NY Slip Op 08195, 4th Dept 11-21-14