Opinion
November 19, 1992
Appeal from the Supreme Court, New York County (Myriam J. Altman, J.).
In this action brought to recover fees allegedly owed, plaintiff moved for summary judgment based upon an account stated. For the reason that defendants did not deny receipt of plaintiff's invoices and statement of account and the retention of such documents without objection, summary judgment was properly granted to plaintiff. (Interman Indus. Prods. v R.S.M. Electron Power, 37 N.Y.2d 151.)
The oral agreement asserted by defendants, wherein they allegedly agreed to pay the plaintiff $2,000 semi-monthly in satisfaction of their existing obligations, was an executory accord which, to be enforceable was required to be in writing pursuant to General Obligations Law § 15-501 (American Broadcasting-Paramount Theatres v American Mfrs. Mut. Ins. Co., 48 Misc.2d 397, affd 24 A.D.2d 851, affd 17 N.Y.2d 849, cert denied 385 U.S. 931).
We further agree with the IAS Court that, under the circumstances herein, neither the doctrine of partial performance nor promissory estoppel may be invoked by the defendants to avoid the Statute of Frauds defense, where defendants' actions in forwarding partial payments in varying amounts at irregular intervals to the plaintiff were not unequivocally referable to the parties' alleged oral agreement (Anostario v Vicinanzo, 59 N.Y.2d 662), and where enforcement of the obligation created by the stated account creates no issue of unconscionability (Carvel Corp. v Nicolini, 144 A.D.2d 611, 612).
We have reviewed the defendants' remaining claims and find them to be without merit.
Concur — Carro, J.P., Rosenberger, Wallach and Ross, JJ.