¶13; Ex. 8) Thus, besides the fact that Zwirner did not make the agreement, even if he had it would be unenforceable under N.Y. Gen. Oblig. Law § 5-701(a)(1), unenforceable under N.Y. U.C.C. § 2-201(1)) and, moreover, void for vagueness. Robins has no likelihood of prevailing on his claims premised on this supposed agreement.

UCC 2-202 Precludes Consideration of Parol Evidence The ship sale contract at issue here is governed by New York’s Uniform Commercial Code (the “UCC”). N.Y. U.C.C. § 2-201(1). Section 2-202 of the UCC prohibits a party from using evidence of a prior agreement or a contemporaneous oral agreement to vary the terms of a final written agreement.

“The rationale underlying the [partial performance] exception is that ‘receipt and acceptance either of goods or of the price constitutes an unambiguous overt admission by both parties that a contract actually exists.’” Id., citing N.Y. UCC § 2-201, Comment (2); compare 810 ILCS 5/2-201, Comment (2) (identical to the rationale 7 Of course, there is also no allegation that Defendant failed to object to the Purchase Order, so even if it were a “confirmation” of a prior oral agreement, UCC § 2-201(2) would still not be met. Case3:13-cv-01929-EMC Document22 Filed06/14/13 Page19 of 30 13 NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM, FEDERAL RULE OF CIVIL PROCEDURE 12(B)(6) 2013-cv-01929 EMC G or do n & R ee s L L P 27 5 B at te ry S tr ee t, Su ite 2 00 0 Sa n Fr an ci sc o, C A 9 41 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 underlying New York’s UCC).