Foley v. Pac Am Or Bearing, Inc.

Order unanimously affirmed, without costs. Memorandum: Special Term properly denied plaintiff’s motion for partial summary judgment. There are triable issues concerning the accounts on which plaintiff was entitled to compensation, the rate of commission, the date on which he was terminated, and the terms of an alleged oral modification under which he was employed from 1978-1981. Defendant was not obligated to plead the oral modification as an affirmative defense. Since plaintiff participated in negotiations regarding it, the defense would be unlikely to take plaintiff by surprise (see CPLR 3018, subd [b]; Rogoff v San Juan Racing Assn., 77 AD2d 831, 832, affd 54 NY2d 883; Carlson v Travelers Ins. Co., 35 AD2d 351). The alleged modification, if established at trial, is enforceable notwithstanding section 5-1103 of the General Obligations Law because it was supported by the consideration of defendant’s forbearance in promising to employ plaintiff between 1978 and 1981 (see Muir v Greene, 191 NY 201; Bisbing v Sterling Precision Corp., 34 AD2d 427). (Appeal from order of Supreme Court, Monroe County, Patlow, J. — partial summary judgment.) Present — Dillon, P. J., Boomer, Green, O’Donnell and Schnepp, JJ.