Dorman v. Cohen , 413 N.Y.S.2d 377 ( 1979 )

Kupferman, J. (dissenting).

I dissent and would affirm. The motion to dismiss the complaint is based on the Statute of Frauds, the language of which applicable provision of the General Obligations Law is set forth in the majority opinion. The Statute of Frauds is not meant to be a way of avoiding an agreement, but rather a method of insuring that the party to be charged has entered into an agreement. (Cf. DFI v Greenberg, 41 NY2d 602, 606.)

As the majority opinion points out, there was an addendum signed by the defendant, which to my mind clearly shows compliance with the applicable language of the Statute of Frauds. (See Crabtree v Elizabeth Arden Sales Corp., 305 NY 48.) The parties performed under the agreement for at least three months after the commencement thereof before the defendant paid up-to-date and terminated or attempted to terminate plaintiffs service.

Although the motion was not directed to it, with respect to mutuality of obligation, it is a perfectly normal contractual arrangement that allows one party to have an option to terminate while the other one does not. (9 NY Jur, Contracts, § 10, p 533.)

Birns and Evans, JJ., concur with Lupiano, J.; Kupferman, J. P., dissents in an opinion.

Order, Supreme Court, New York County, entered on September 21, 1978, reversed. Appellants shall recover of respondents $75 costs and disbursements of this appeal.