July 15, 1994
Appeal from the Supreme Court, Monroe County, Calvaruso, J.
Present — Balio, J.P., Lawton, Callahan, Doerr and Boehm, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in dismissing the complaint on the ground that plaintiff's cause of action is barred by the Statute of Frauds (see, General Obligations Law § 5-701 [a] ). The Statute applies only to agreements that, by express and specific agreement, are not to be performed within one year (Banker's Trust Co. v. Steenburn, 95 Misc.2d 967, 984, affd 70 A.D.2d 786). It does not apply to an agreement that appears by its terms to be fully capable of performance within one year (see, D N Boening v. Kirsch Beverages, 63 N.Y.2d 449, 455-456; North Shore Bottling Co. v. Schmidt Sons, 22 N.Y.2d 171, 176). The financial agreement between the parties, although capable of an indefinite continuance, could have been terminated by either party at any time. Thus, the agreement is one that was fully capable of performance within one year and, therefore, the agreement is not within the Statute of Frauds (see, North Shore Bottling Co. v. Schmidt Sons, supra; Banker's Trust Co. v Steenburn, supra).
The court properly denied, however, plaintiff's motion for summary judgment. Defendant submitted evidentiary proof in admissible form of material questions of fact sufficient to require a trial (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562; CPLR 3212 [b]).
Thus, we modify the order appealed from by denying defendant's cross motion to dismiss the complaint and otherwise affirm.