Lerner v. Partnership of Schlagel

In an action to recover damages for breach of contract, the plaintiff appeals (1) from an order of the Supreme Court, Nassau County (O’Connell, J.), dated September 22, 1997, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that it is barred by the Statute of Frauds, and (2) from so much of an order of the same court, dated February 23, 1998, as, upon reargument, adhered to its prior determination. Ordered that the appeal from the order dated September 22, 1997, is dismissed, as that order was superseded by the order dated February 23, 1998, made upon reargument; and it is further, Ordered that the order dated February 23, 1998, is affirmed insofar as appealed from; and it is further, Ordered that one bill of costs is awarded to the respondents appearing separately and filing separate briefs. We agree with the Supreme Court that the plaintiffs action is barred by the Statute of Frauds (see, General Obligations Law § 5-701 [a] [1]; Cunnison v Richardson Greenshields Sec., 107 AD2d 50; Health Delivery Sys. v Scheinman, 42 AD2d 566; Krear & Co. v Nineteen Named Trustees, 545 F Supp 372; cf., Crabtree v Elizabeth Arden Sales Corp., 305 NY 48). O’Brien, J. P., Ritter, Thompson and Goldstein, JJ., concur.