Chaudhry v. Abadir , 690 N.Y.S.2d 629 ( 1999 )

—In an action, inter alia, to recover damages for breach of contract, the defendants appeal from so much of an order of the Supreme Court, Westchester County (Nastasi, J.), entered August 11, 1998, as (1) denied their motion for summary judgment dismissing the complaint, (2) denied their separate motion to stay enforcement of an order of the same court, entered April 28, 1998, granting that branch of the plaintiffs’ motion which was to compel production of certain documents, and (3) granted the plaintiffs’ motion for sanctions to the extent of directing them to pay a sanction in the sum of $250.

Ordered that the order is affirmed insofar as appealed from, with costs.

Since it has not been demonstrated that the Statute of Frauds is applicable to the agreement between the parties (cf., UCC 8-113; General Obligations Law § 5-701 [a] [1]), the defendants were not entitled to summary judgment dismissing the causes of action to recover damages for breach of contract. In any event, even if the Statute of Frauds were applicable, there exist material, triable issues of fact (see, CPLR 3212 [b]) as to whether the plaintiffs performed under the agreement; that is, whether their acts were unequivocally referable to the alleged agreement, thereby taking the matter outside the ambit of the statute (see, Gross v Vogel, 81 AD2d 576, 577; see also, Serdaroglu v Serdaroglu, 209 AD2d 600, 603).

Neither the court’s denial of the defendants’ motion for a stay nor its granting of the plaintiffs’ motion for a sanction in the sum of $250 constituted an improvident exercise of discretion. Both determinations were appropriate under the circumstances.

The defendants’ remaining contentions are without merit. S. Miller, J. P., O’Brien, Ritter and Luciano, JJ., concur.