Public Broadcast Marketing, Inc. v. Trustees of University of Pennsylvania

Order, Supreme Court, New York County (Herman Cahn, J.), entered on or about February 2, 1995, dismissing the complaint, unanimously affirmed, with costs.

Inasmuch as plaintiffs own memoranda show that the term of the alleged oral contract was to run for approximately 19 months without an option in either party to terminate, the alleged contract was correctly found to be not capable of performance within a year and thus barred by the Statute of Frauds (General Obligations Law § 5-701 [a] [1]; D & N Boening v Kirsch Beverages, 63 NY2d 449). Defendant’s $7,000 payment made more than a year after receiving plaintiffs invoices was not unequivocally referable to the alleged oral contract, but rather consistent with a good faith, one-time payment in recognition of plaintiff s efforts during the period of the parties’ unsuccessful negotiations, and thus was not a partial performance that took the alleged contract out of the Statute of Frauds (see, Tierney v Capricorn Investors, 189 AD2d 629, 631, lv denied 81 NY2d 710). The cause of action for account stated was also properly dismissed, documentary evidence establishing that defendant disagreed with plaintiff’s invoices and never assented to a balance (see, Abbott, Duncan & Wiener v Ragusa, 214 AD2d 412). Concur—Sullivan, J. P., Ellerin, Asch, Nardelli and Williams, JJ.