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MOTION TO VACATE THE EXECUTED WARRANT OF EVICTION PROPERLY GRANTED.

The First Department, over an extensive concurrence by Justice Saxe, determined Civil Court properly granted tenant’s post-eviction motion to vacate the warrant of eviction and restore the tenant to possession. The tenant was disabled and had trouble securing the emergency rental assistance to cover the arrears. Eventually the landlord was paid in full and the costs of the eviction were reimbursed. The concurrence expressed concern over the validity of the relevant precedent and the need for landlords to essentially lend money at no interest to low-income tenants “who rely on the slow process of obtaining grants and supplemental payments to cover their rent.” With respect to the authority to vacate an executed warrant of eviction, the court wrote:

We reject the landlord’s contention, premised on RPAPL 749(3), that the Civil Court lacked the authority to grant the tenant’s post-eviction motion … . “[T]he Civil Court may, in appropriate circumstances, vacate the warrant of eviction and restore the tenant to possession even after the warrant has been executed” … . Here, the Civil Court providently exercised its discretion, as the record shows that the long-term, disabled tenant “did not sit idly by[,]” but instead made appreciable payments towards his rental arrears and “engaged in good faith efforts to secure emergency rental assistance to cover the arrears” … . Moreover, the tenant has paid the rental arrears for the unit and the landlord’s costs for the underlying proceeding …, and the record shows that the delays in payment were, to a certain extent, attributable to others, including the landlord … . Matter of Lafayette Boynton Hsg. Corp. v Pickett, 2016 NY Slip Op 00253, 1st Dept 1-14-16

 

LANDLORD-TENANT (MOTION TO VACATE EXECUTED WARRANT OF EVICTION PROPERLY GRANTED)/EVICTION (MOTION TO VACATE EXECUTED WARRANT OF EVICTION PROPERLY GRANTED)

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STACKED SCAFFOLDING FRAMES WHICH TOPPLED ONTO PLAINTIFF DID NOT CONSTITUTE AN ELEVATION RISK, LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY DISMISSED; LABOR LAW 241 (6) CAUSE OF ACTION, BASED UPON CODE PROVISION REQUIRING SAFE, STABLE STORAGE OF BUILDING MATERIALS, PROPERLY SURVIVED.

Scaffolding frames had been stacked vertically against a column on ground level. Plaintiff, Hebbard, was injured when he attempted to move a frame and other frames toppled onto him. The Third Department determined the accident was not the result of an “elevation risk” and therefore would not support a Labor Law 240 (1) cause of action. However the Labor Law 241 (6) cause of action was supported by an industrial code provision requiring safe, stable storage of building materials:

 

Here, Hebbard was six feet tall. The frames were about the same height as Hebbard and they were located on the same level as him. He was engaged in moving them from one place on the garage floor to another place on the same floor and did so by carrying one at a time. As he picked up one frame, other frames also located on the same level tipped over. Under the circumstances and in light of recent precedent, the Labor Law § 240 (1) cause of action was properly dismissed.

… Elements of a viable Labor Law § 241 (6) cause of action include “the violation of a regulation setting forth a specific standard of conduct applicable to the working conditions which existed at the time of the injury and that the violation was the proximate cause of the injury” … . “The Industrial Code should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace” … .

The relevant regulation provides: “All building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare” (12 NYCRR 23-2.1 [a] [1]). Hebbard v United Health Servs. Hosps., Inc., 2016 NY Slip Op 00248, 3rd Dept 1-14-16

 

LABOR LAW (STACKED FRAMES WHICH FELL OVER NOT AN ELEVATION RISK)/LABOR LAW (STACKED FRAMES WHICH FELL OVER SUPPORTED LABOR LAW 246 (1) CAUSE OF ACTION)

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THE FACT THAT A (NON-DEFECTIVE) A-FRAME LADDER FELL OVER WHILE PLAINTIFF HELD ON TO IT AFTER PLAINTIFF WAS JOLTED WITH ELECTRICITY JUSTIFIED SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) CAUSE OF ACTION.

The First Department, over an extensive concurring memorandum, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff was standing on an A-frame ladder when he was jolted by contact with an electric wire and the ladder fell over as plaintiff held on to it. There was no evidence the ladder was defective. The majority held the fact the ladder was not secured to something, and therefore fell over while plaintiff was hanging on to it, demonstrated the failure to provide plaintiff with an adequate safety device. The concurring memorandum argued plaintiff’s fall from a non-defective ladder was not enough to justify summary judgment, but rather the fall from the ladder after contact with electricity raised a question of fact about the adequacy of the safety devices provided. The majority wrote:

 

Here, plaintiff was injured when he was jolted by the electrical charge and although he hung onto the ladder, because it was not secured to something stable, it and he fell to the ground … . The lack of a secure ladder is a violation of Labor Law § 240(1), and is a proximate cause of the accident … . Nazario v 222 Broadway, LLC, 2016 NY Slip Op 00251, 1st Dept 1-14-16

 

LABOR LAW (SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION SUPPORTED BY NON-DEFECTIVE A-FRAME LADDER WHICH FELL OVER WITH PLAINTIFF HOLDING ON TO IT AFTER PLAINTIFF WAS JOLTED WITH ELECTRICITY)

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PETITIONERS, WHO HELD CATERED EVENTS, INCLUDING WEDDINGS, AT THEIR FARM, COMMITTED AN UNLAWFUL DISCRIMINATORY PRACTICE WHEN THEY REFUSED TO ALLOW RESPONDENTS’ SAME-SEX MARRIAGE AT THE FARM.

The Third Department, in a full-fledged opinion by Justice Peters, determined the State Division of Human Rights (SDHR) properly found petitioners (the Giffords) discriminated against respondents (the McCarthys) by refusing to hold the McCarthys’ same-sex marriage at the Giffords’ farm (Liberty Ridge). The Giffords held catered events on their farm, including weddings. The Third Department held the farm was “a place of public accommodation” within the meaning of the Human Rights Law (Executive law 290 [3]) and was therefore subject to the statutory prohibition of “unlawful discriminatory practice[s]” in “a place of public accommodation.” The federal and state constitutional arguments raised by the owners of the farm  (free exercise of religion, free speech, compelled speech and expressive association) were discussed in detail and rejected. SDHR’s award of $1500 each to the respondents, and the imposition of a $10,000 civil penalty on the Giffords was upheld. With respect to the definition of “a place of public accommodation,” the court explained:

Executive Law § 292 (9) “defines ‘place of public accommodation, resort or amusement’ inclusively and illustratively, not specifically, and sets forth an extensive list of examples of places within the statute” … . Such term includes “establishments dealing with goods or services of any kind” and “any place where food is sold for consumption on the premises” (Executive Law § 292 [9]). Over the years, the statutory definition has been expanded repeatedly, “provid[ing] a clear indication that the Legislature used the phrase place of public accommodation ‘in the broad sense of providing conveniences and services to the public’ and that it intended that the definition of place of accommodation should be interpreted liberally” … .

Here, Liberty Ridge’s wedding facilities fall comfortably within the broad definition of “place of public accommodation.” It is undisputed that petitioners open Liberty Ridge to the public as a venue for wedding ceremonies and receptions and offer several wedding-related event services in connection therewith. Indeed, the only wedding-related service that Liberty Ridge does not provide is an officiant for the wedding ceremony. The couples who contract to wed at Liberty Ridge’s facilities are members of the general public who, like the McCarthys, may be attracted to the farm by its broadly disseminated advertisements and website. The fact that the wedding ceremonies occur on private property and pursuant to a written contract does not, as petitioners contend, remove Liberty Ridge’s facilities from the reach of the Human Rights Law; the critical factor is that the facilities are made available to the public at large… . Matter of Gifford v McCarthy, 2016 NY Slip Op 00230, 3rd Dept 1-14-16

LABOR LAW (SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION SUPPORTED BY NON-DEFECTIVE A-FRAME LADDER WHICH FELL OVER WITH PLAINTIFF HOLDING ON TO IT AFTER PLAINTIFF WAS JOLTED WITH ELECTRICITY)

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TRADE SECRET EXEMPTION DOES NOT REQUIRE PROOF DISCLOSURE WOULD RESULT IN COMPETITIVE INJURY.

The Third Department, in a full-fledged opinion by Justice Rose, determined the exemption from disclosure under the Freedom of Information Law (FOIL) for trade secrets did not require a showing that disclosure of the trade secrets would result in substantial competitive injury. Rather, the statute, Public Officers Law 87 (2) (d), provides two distinct exemptions from disclosure: one for bona fide trade secrets and one for documents which, if disclosed, would cause substantial injury to the competitive position of the owner of the documents. Supreme Court’s finding that the exemption for trade secrets did not require proof of injury to competitive position was upheld. There are strict criteria in place for determining whether information constitutes a bona fide trade secret. Applying those criteria, Supreme Court properly determined that several documents provided by petitioner (Verizon) to the Department of Public Service were exempt from FOIL disclosure as bona fide trade secrets:

 

As pertinent here, Public Officers Law § 87 (2) (d) protects from FOIL disclosure “all records” that “are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise.” Respondents argue that this language unambiguously indicates that the Legislature intended to create a single FOIL exemption for all types of confidential commercial information imparted to an agency — including trade secrets — and to subject all such information to the same showing of substantial competitive injury. * * *

Our courts have long recognized “[t]he importance of trade secret protection and the resultant public benefit” … , and have developed a fact-intensive inquiry to determine whether specific commercial information is a bona fide trade secret worthy of such protection. First, it must be established that the information in question is a “‘formula, pattern, device or compilation of information which is used in one’s business, and which gives [one] an opportunity to obtain an advantage over competitors who do not know or use it'” … . Second, if the information fits this general definition, then an additional factual determination must be made

“concerning whether the alleged trade secret is truly secret by considering: (1) the extent to which the information is known outside of the business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by the business to guard the secrecy of the information; (4) the value of the information to the business and its competitors; (5) the amount of effort or money expended by the business in developing the information; [and] (6) the ease or difficulty with which the information could be properly acquired or duplicated by others” … .

Inasmuch as an entity seeking to establish the existence of a bona fide trade secret must make a sufficient showing with respect to each of these factors, we agree with Supreme Court that it is wholly unnecessary and overly burdensome to require the entity to then make a separate showing that FOIL disclosure of the trade secret would cause substantial injury to its competitive position.  Matter of Verizon N.Y., Inc. v New York State Pub. Serv. Commn.2016 NY Slip Op 00239, 3rd Dept 1-14-16

 

HUMAN RIGHTS LAW (REFUSAL TO ALLOW SAME-SEX MARRIAGE ON PETITIONER’S PROPERTY CONSTITUTED AN UNLAWFUL DISCRIMINATORY PRACTICE)/CONSTITUTIONAL LAW (REFUSAL TO ALLOW SAME-SEX MARRIAGE ON PETITIONERS’ PROPERTY DID NOT VIOLATE PETITIONERS’ RIGHTS TO FREE EXERCISE OF RELIGION, FREE SPEECH OR EXPRESSIVE ASSOCIATION)/SAME-SEX MARRIAGE (REFUSAL TO ALLOW VIOLATED HUMAN RIGHTS LAW)/PLACE OF PUBLIC ACCOMMODATION (DEFINED FOR PURPOSES OF UNLAWFUL DISCRIMINATION UNDER THE HUMAN RIGHTS LAW)

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WHERE THE EVIDENCE OF GUILT WAS NOT OVERWHELMING, COUNTY COURT’S ERROR IN ALLOWING EVIDENCE AT TRIAL WHICH THE COURT HAD PREVIOUSLY PRECLUDED REQUIRED REVERSAL AND A NEW TRIAL.

The Third Department determined it was reversible error to allow a police officer’s testimony identifying defendant as a person depicted in surveillance video from a store about an hour before the robbery of which defendant was convicted. Defendant claimed he was shopping in the store at the time of the robbery. The evidence of defendant’s participation in the robbery was not overwhelming. The trial judge had ruled the video could be introduced in evidence but no testimony identifying the defendant as a person depicted in the video could be offered. At trial, however, over objection, Cornell, a police officer, was permitted to identify the defendant in the video:

 

… [E]arlier in the proceedings County Court had ruled that, to the extent that the People were going to offer such surveillance footage into evidence, they were precluded from offering testimony identifying defendant in such footage. Cornell then testified on direct examination that he obtained the video surveillance footage from the store where defendant had claimed to have been shopping at the time of the robbery and described a group of five people that entered at approximately 6:20 p.m. and left at approximately 6:45 p.m., approximately one hour before the robbery. Upon the People’s question, “And the group being [defendant], three women and a toddler,” Cornell answered, “That’s correct.” Defendant objected to the question and the answer, which was overruled by County Court. Inasmuch as this testimony violated County Court’s prior ruling because it identified defendant as being the individual in the video who was accompanied by three women and a toddler, it should have been precluded.

Based upon the record before us, County Court’s evidentiary error in permitting Cornell’s identification testimony of defendant in the surveillance video cannot be deemed harmless. Specifically, under the particular factual circumstances of this case, the evidence of defendant’s guilt, although legally sufficient to support the jury’s verdict, was not overwhelming given the lack of direct evidence linking defendant to the crime and the conflicting witness testimony regarding defendant’s presence at the crime scene … . People v Myrick, 2016 NY Slip Op 00217, 3rd Dept 1-14-16

 

CRIMINAL LAW (WHERE THE EVIDENCE OF GUILT WAS NOT OVERWHELMING, ALLOWING EVIDENCE AT TRIAL WHICH HAD BEEN PREVIOUSLY PRECLUDED WAS REVERSIBLE ERROR)/EVIDENCE (WHERE THE EVIDENCE OF GUILT WAS NOT OVERWHELMING, ALLOWING EVIDENCE AT TRIAL WHICH HAD BEEN PREVIOUSLY PRECLUDED WAS REVERSIBLE ERROR)

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SHAREHOLDERS’ DERIVATIVE ACTION AGAINST MORGAN STANLEY ARISING FROM THE LOSS OF $6.2 BILLION FROM HIGH RISK TRADING DISMISSED; PLAINTIFFS FAILED TO DEMONSTRATE PRE-SUIT DEMAND WOULD BE FUTILE.

The First Department, in this shareholders’ derivative action against Morgan Stanley, determined the plaintiffs did not demonstrate that a pre-suit demand upon the board of directors would have been futile.  Therefore, the action was properly dismissed (without prejudice). The lawsuit involved the so-called “London Whale” debacle where $6.2 billion was lost in high-risk trading despite public representations the group engaged in only low risk hedging. The court explained the relevant criteria for a futility demonstration:

 

Plaintiffs’ claim, based on the Board’s alleged failure to properly exercise its oversight duties, is premised on the theory of liability articulated in In re Caremark Intl. Inc. Derivative Litig. (698 A2d 959…). * * *

In Caremark cases, allegations of demand futility are analyzed under the principles set forth in Rales v Blasband (634 A2d 927, 933-934 [Del 1993]) …). Under Rales, the plaintiff must plead particularized facts raising “a reasonable doubt that, [at] the time the complaint [was] filed, the board of directors could have properly exercised its independent and disinterested business judgment in responding to a demand” … . To rebut the presumption of disinterestedness, the plaintiff must plead particularized facts that, if proved, would establish that a majority of the directors face a “substantial likelihood” of personal liability for the wrongdoing alleged in the complaint … . A “mere threat” of liability is insufficient … .

Here, plaintiffs failed to make the requisite showing that the board could not exercise independent business judgment because a majority of directors faced a substantial likelihood of liability for the challenged conduct. At the time plaintiffs filed their complaint, the board consisted of 11 directors. At most, plaintiffs showed that four of them — inside director Dimon and the three members of the Risk Policy Committee — faced a substantial likelihood of liability … . “Because a majority of the directors are independent, demand is not excused”… . Wandel v Dimon, 2016 NY Slip Op 00252, 1st Dept 1-14-16

 

CRIMINAL LAW (SEXUAL ASSAULT REFORM ACT DOES NOT VIOLATE EX POST FACTO CLAUSE)/SEXUAL ASSAULT REFORM ACT [SARA] (1000-FOOT SCHOOL-GROUNDS NO-GO ZONE IS NOT PUNITIVE IN EFFECT AND DOES NOT VIOLATE EX POST FACTO CLAUSE)/CONSTITUTIONAL LAW (1000-FOOT SCHOOL-GROUNDS NO-GO ZONE IN THE SEXUAL ASSAULT REFORM ACT IS NOT PUNITIVE IN EFFECT AND THEREFORE DOES NOT VIOLATE EX POST FACTO CLAUSE)/EX POST FACTO CLAUSE (1000-FOOT SCHOOL-GROUNDS NO-GO ZONE IN THE SEXUAL ASSAULT REFORM ACT IS NOT PUNITIVE IN EFFECT AND THEREFORE DOES NOT VIOLATE EX POST FACTO CLAUSE)

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RENTAL PERMIT REQUIRED BY TOWN CODE WAS A CONDITION PRECEDENT TO THE LEASE; CODE PROVISION CREATED A PRIVATE RIGHT OF ACTION TO SEEK RESCISSION OF THE LEASE AND RETURN OF RENT PAID.

The Second Department determined plaintiffs-lessees were entitled to bring a private action (pursuant to a provision of the town code) to rescind a lease, and were entitled to rescission and return of the paid rent. After paying $216,000 to lease defendant’s residential property for approximately 3 1/2 months, the plaintiffs learned defendant did not have a rental permit required by section 270 of the town code. The code provision was enacted to address overcrowding in properties rented for the summer. The Second Department held the code provision created a private right of action and the rental permit was a condition precedent to any lease. With respect to the private right of action, the court wrote:

 

Where, as here, a statute “does not explicitly provide for a private cause of action, recovery may be had under the statute only if a legislative intent to create such a right of action is fairly implied’ in the statutory provisions and their legislative history” … . This inquiry involves three factors: ” (1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme'” … . The third factor is often noted to be the “most important” … . Where, as here, the legislature clearly contemplated administrative enforcement of the statute, ” [t]he question then becomes whether, in addition to administrative enforcement, an implied private right of action would be consistent with the legislative scheme'”… .

The plaintiffs satisfied the first and second factors here. Town Code § 270 is intended to benefit the occupants of rental properties in the Town of Southampton by requiring owners to obtain a valid rental permit as a condition precedent to the collection of rent (see Town Code § 270-13). Moreover, the legislative purpose is promoted by preventing owners from profiting from the rental of properties that are overcrowded, substandard, or otherwise violate State and Town laws.

The third factor, requiring that a private cause of action under a statute be consistent with the legislative scheme, has also been satisfied. As the Supreme Court correctly observed, Town Code § 270 is directed toward protecting the health, safety, and well-being of persons renting homes in the Town of Southampton. In that regard, Town Code § 270-6 requires that prior to the issuance of a rental permit, the enforcement authority must “make an on-site inspection of the proposed rental property” to ensure that the property “complies with the New York State Uniform Fire Prevention and Building Code and the Code of the Town of Southampton” (Town Code § 270-6). Although Town Code § 270 is intended to be enforced by designated Town officials and provides for penalties and fines, “without the threat of recoupment of rent, aside from the possibility of administrative enforcement, there is no incentive for a landlord to obtain a license, which is an overriding concern of the Town” … . Ader v Guzman, 2016 NY Slip Op 00137, 2nd Dept 1-13-16

 

NEGLIGENCE (QUESTION OF FACT WHETHER HOTEL DEFENDANT VICARIOUSLY LIABLE FOR NEGLIGENCE OF SNOWMOBILE TOUR GUIDE UNDER APPARENT AGENCY THEORY)/AGENCY (QUESTION OF FACT WHETHER HOTEL DEFENDANT VICARIOUSLY LIABLE FOR NEGLIGENCE OF SNOWMOBILE TOUR GUIDE UNDER APPARENT AGENCY THEORY)

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HOSPITAL DEFENDANTS ENTITLED TO MEDICAL-PEER-REVIEW AND COMMON-INTEREST QUALIFIED PRIVILEGE RE: COMMENTS MADE IN CONNECTION WITH THE TERMINATION OF PLAINITFF-PHYSICIAN’S HOSPITAL PRIVILEGES.

The Second Department, reversing Supreme Court, determined defendant hospital and administrators were entitled to summary judgment dismissing plaintiff’s defamation complaint. Plaintiff was a physician with privileges at defendant hospital. Based upon complaints about plaintiff’s behavior, the hospital terminated plaintiff’s hospital privileges pursuant to a recommendation of the hospital’s credentials committee. The statements at issue were made before, during and after the administrative proceedings at the hospital. The Second Department determined the defendants were not entitled to absolute privilege for comments made during the meeting of the credentials committee because those proceedings were not judicial or quasi-judicial in nature. However, the defendants were entitled to qualified privilege for medical peer review proceedings pursuant to 42 USC 1111. With respect to comments made both prior to and during the meeting of the credentials committee, the Second Department found that a “qualified privilege of common interest” applied. The Second Department rejected Supreme Court’s finding that plaintiff had raised a question of fact whether the defendants acted with malice (which would have removed the qualified privilege). With respect to comments made after the termination of plaintiff’s hospital privileges, the Second Department found, based upon plaintiff’s public comments, plaintiff was a limited-purpose public figure and there was no showing defendants’ post-termination comments were made with actual malice.  Concerning the two types of qualified privilege which were found applicable, the court explained:

 

The defendants established, prima facie, that they were entitled to a qualified privilege under 42 USC § 11111(a), part of the Health Care Quality Improvement Act, which creates a qualified privilege for information provided in medical peer review proceedings concerning the competence or professional conduct of a physician, “unless such information is false and the person providing it knew that such information was false” (42 USC § 11111[a][2]…)

* * * With respect to [the] causes of action … predicated upon allegedly defamatory statements made both during and prior to the Credentials Committee meeting, the defendants established, prima facie, that they were entitled to a qualified privilege of common interest … , under state statutory law (see Public Health Law §§ 2805-j[2]; 2805-m[3]; Education Law § 6527[3], [5]), and under [the hospital’s] bylaws … . Colantonio v Mercy Med. Ctr., 2016 NY Slip Op 00147, 2nd Dept 1-13-16

 

DEFAMATION (MEDICAL PEER REVIEW AND COMMON INTEREST QUALIFIED PRIVILEGE APPLIED TO COMMENTS MADE IN CONNECTION OF TERMINATION OF PLAINTIFF’S HOSPITAL PRVILEGES)/QUALIFIED PRIVILEGE (DEFAMATION, MEDICAL PEER REVIEW AND COMMON INTEREST QUALIFIED PRIVILEGE APPLIED TO COMMENTS MADE IN CONNECTION OF TERMINATION OF PLAINTIFF’S HOSPITAL PRVILEGES)/MEDICAL PEER REVIEW QUALIFIED PRIVILEGE (DEFAMATION)/COMMON INTEREST QUALIFIED PRIVILEGE (DEFAMATION)

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ALTHOUGH THE ORAL CONTRACT CALLED FOR THE MATURATION OF A LOAN AFTER 15 YEARS, THE STATUTE OF FRAUDS DID NOT APPLY BECAUSE IT WAS POSSIBLE TO PERFORM THE CONTRACT WITHIN A YEAR.

In 1998 plaintiff and defendant allegedly entered an oral agreement for a loan of $71,500 at 9% annual interest. The loan matured on December 31, 2013. When plaintiff sued for payment, the defendant sought to dismiss the complaint, arguing the statute of frauds prohibited the oral agreement because the agreement could not be performed within a year. The Second Department affirmed Supreme Court’s denial of the defendant’s motion, finding that it was possible the agreement could have been performed within a year:

 

Pursuant to the statute of frauds, an agreement not reduced to writing is void if, by its terms, it cannot be performed within one year of its making (see General Obligations Law § 5-701[a][1]…). Only those agreements which, by their terms, “have absolutely no possibility in fact and law of full performance within one year” will fall within the statute of frauds … . “As long as the agreement may be fairly and reasonably interpreted such that it may be performed within a year, the Statute of Frauds will not act as a bar however unexpected, unlikely, or even improbable that such performance will occur during that time frame” … .

Here, contrary to the defendant’s contention, the oral agreement between the parties, by its terms, was capable of being performed within one year of its making. As such, the statute of frauds was inapplicable.  JNG Constr., Ltd. v Roussopoulos, 2016 NY Slip Op 00156, 2nd Dept 1-13-16

 

CONTRACT LAW (STATUTE OF FRAUDS DID NOT RENDER AN ORAL CONTRACT TO PAY OFF A LOAN AFTER 15 YEARS VOID)/STATUTE OF FRAUDS (ORAL CONTRACT TO PAY OFF A LOAN AFTER 15 YEARS WAS NOT VOID, CONTRACT COULD HAVE BEEN PERFORMED WITHIN A YEAR)

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