Lucy-Turner v. Builders Bonds Ltd.

—Order, Supreme Court, New York County (C. Beauchamp Ciparick, J.), entered on or about December 30, 1988, denying defendants’ motion for summary judgment on the ground of Statute of Frauds, unanimously affirmed, with costs. The oral agreement to form a corporation and divide its stock and the earned commissions equally was sufficiently memorialized by correspondence between the parties, as well as by part performance (opening of a joint bank account, use of the corporate letterhead on stationery, etc.) which was clearly referable to the agreement (Marcraft Recreation Corp. v Devlin Co., 506 F Supp 1081). The test for application of the Statute of Frauds is not the mere uncertainty of performance within one year, but the actual incapability of performance within that period (Freedman v Chemical Constr. Corp., 43 NY2d 260, 265). There clearly existed the possibility of performance within that period (Silberstein v Production Fashions, 137 AD2d 805). Murphy, P. J., Carro, Milonas, Kassal and Wallach, JJ.