Osborne v. Murray

Order, Supreme Court, New York County (Carol Arber, J.), entered February 26, 1997, which, to the extent appealed from, granted defendants’ motion for partial summary judgment dismissing the fourth, fifth and sixth causes of action on the ground of the Statute of Frauds, and denied plaintiff’s motion for summary judgment on his third, sixth and ninth causes of action, unanimously affirmed, without costs. Defendants’ failure to plead the Statute of Frauds as an affirmative defense did not bar summary dismissal in these circumstances (see, Rogoff v San Juan Racing Assn., 54 NY2d 883). The checks that plaintiff asserts as a written memorandum do not contain all the essential terms of the agreement (see, McDaniel v Sangenino, 67 AD2d 698, 699). The payments are not unintelligible or extraordinary without reference to the alleged oral agreement (see, Arden Communications v Abbate, 220 AD2d 237), and do not correspond precisely to the obligation imposed by the alleged oral contract (see, Thallon & Co. v Edsil Trading Corp., 302 NY 390). As for plaintiff’s claims sounding in account stated, there is a question of fact as to whether defendants held plaintiff’s bills for an unreasonable period of time without objection (see, A & J Produce Corp. v De Palo Indus., 215 AD2d 317). We have considered plaintiff’s remaining arguments and find them to be without merit. Concur—Murphy, P. J., Wallach, Rubin, Tom and Andrias, JJ.