Pirrelli
v.
Schiavone Construction Company

Appellate Division of the Supreme Court of New York, Second DepartmentMay 23, 1988
140 A.D.2d 596 (N.Y. App. Div. 1988)

May 23, 1988

Appeal from the Supreme Court, Suffolk County (Underwood, J.).


Ordered that the order is affirmed, with costs.

An oral agreement which provides for payment of an amount which is not to be determined within one year from the making of the agreement, inconsistent with the written employee benefit plans incorporated by reference into an oral employment agreement, is proscribed by the Statute of Frauds where such payment is to be made out of a profit-sharing plan. Such is so even if it is characterized as "severance pay" (see, General Obligations Law § 5-701).

Moreover, even if the Statute of Frauds does not apply, an oral agreement which modifies written employee benefit plans governed by the Employee Retirement Income Security Act of 1974 ( 29 U.S.C. § 1001) is illegal and unenforceable (see, Nachwalter v Christie, 805 F.2d 956). Lawrence, J.P., Kunzeman, Eiber and Balletta, JJ., concur.