Opinion
October 15, 1970
Order entered May 15, 1970, unanimously modified on the law to grant that portion of defendant's motion seeking summary judgment dismissing the first cause of action, and the first cause of action is severed; and, as so modified, the order is affirmed, without costs and without disbursements. In the first cause of action plaintiff seeks recovery for breach of an alleged management consultant contract, wherein he alleges he was to be employed by defendant for the period commencing May 1, 1966 and expiring April 30, 1967 for a fee of $25,000. However, the record before us quite clearly shows that such contract is violative of the Statute of Frauds and hence is not enforceable. The bill of particulars of the plaintiff as well as the examination before trial establish that the alleged contract which forms the basis of the first cause of action was oral and that there was no note or memorandum of such contract. Further, by plaintiff's own testimony such agreement was entered into based upon discussions which took place in February and March 1966. The agreement therefore was void since "By its terms it [was] not to be performed within one year from the making thereof". (General Obligations Law, § 5-701.) The plaintiff seeks to avoid the bar of the Statute of Frauds by asserting that since he had been employed by defendant for the prior two years under one year contracts and since allegedly he performed services for the defendant for a period of twelve days into the third year that such continued performance by the parties after expiration of the prior contract created a contract implied in fact for the third year. However, insufficient is set forth to raise a triable issue as to the creation of an implied contract for a third year based upon the continued performance by the parties. In any event, as indicated above, the plaintiff by his unequivocal testimony has stated that the parties entered into an express oral agreement by March 14, 1966 thus negativing any reliance upon a contract implied in fact (see Miller v. Schloss, 218 N.Y. 400).
Concur — Capozzoli, J.P., McGivern, Nunez, McNally and Tilzer, JJ.