Aspesi v. Shahinian Acoustics, Ltd.

In an action, inter alia, to recover damages for breach of a contract of employment and for fraud, defendants appeal from so much of an order of the Supreme Court, Nassau County (Velsor, J.), dated April 29, 1980, as granted the branch of plaintiff’s motion which sought to dismiss their first affirmative defense, based upon the Statute of Frauds. Order reversed, insofar as appealed from, on the law, with $50 costs and disbursements, the afore-mentioned branch of plaintiff’s motion is denied and the affirmative defense is reinstated. The pleadings raise an issue of fact as to whether the alleged oral contract was, by its terms, not to be performed within one year from the making thereof, so as to be void pursuant to section 5-701 (subd a, par 1) of the General Obligations Law. Therefore, the defense should not have been dismissed (see Walsh v Henning, 31 Misc 2d 871, affd 16 AD2d 707). Mangano, J.P., O’Connor, Weinstein and Bracken, JJ., concur.