Opinion
June 17, 1997
Appeal from the Supreme Court, New York County (Carol Arber, J.).
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 N.Y.2d 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 A.D.2d 698, 699). The payments are not unintelligible or extraordinary without reference to the alleged oral agreement ( see, Arden Communications v. Abbate, 220 A.D.2d 237), and do not correspond precisely to the obligation imposed by the alleged oral contract ( see, Thallon Co. v. Edsil Trading Corp., 302 N.Y. 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 A.D.2d 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.