Smith v. Forensic Mental Health Institute, Inc.

Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied defendants’ motions for summary judgment. In opposition to the motions, plaintiff submitted proof of an express limitation on the right to terminate her employment with defendant Forensic Mental Health Institute, Inc. That proof was sufficient to demonstrate that there is an unresolved material issue of fact whether she was an "at-will” employee (Weiner v McGraw-Hill, Inc., 57 NY2d 458, 465-466; see, Myers v Coradian Corp., 92 AD2d 643). Supreme Court erred, however, in ruling that the Statute of Frauds issue raised by defendants presents an issue of fact. The 875 employment agreement does not fall within the Statute of Frauds. New York courts have narrowly interpreted one-year provisions and have found unenforceable only those contracts that "by their very terms have absolutely no possibility in fact and law of full performance within one year” (D & N Boening v Kirsch Beverages, 63 NY2d 449, 454). Further, the Statute of Frauds does not apply to " 'cases in which the performance of the agreement depends upon a contingency which may or may not happen within the year’ ” (North Shore Bottling Co. v Schmidt & Sons, 22 NY2d 171, 176). Plaintiff offered proof that her position could be terminated if the Institute lost its funding, a contingency that is sufficient to render the Statute of Frauds inapplicable (cf., Warner & Whitney v Union Camp Corp., 166 AD2d 776). (Appeals from Order of Supreme Court, Oneida County, Parker, J. — Summary Judgment.) Present— Pine, J. P., Fallon, Boomer, Davis and Boehm, JJ.