Summary
affirming the conclusion that the Statute of Frauds was not satisfied because "[t]he writings, taken together, fail to contain all of the essential terms of the alleged agreement"
Summary of this case from Sequoia Healthcare Servs., LLC v. Essex Capital Corp.Opinion
No. 177 SSM 17.
Decided June 7, 2011.
APPEAL from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered December 30, 2010. The Appellate Division, with two Justices dissenting, affirmed an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), which had granted a motion by defendant to set aside a jury verdict and dismissed the amended complaint.
Plaintiffs' amended complaint alleged that defendant breached a noncompete clause in a 1996 written employment agreement that allegedly had been incorporated in its entirety as a term and condition of a 1998 oral employment agreement.
James V. Aquavella, M.D., P.C. v Viola, 79 AD3d 1590, affirmed.
Calihan Law, PLLC, Rochester ( Robert B. Calihan of counsel), for appellants.
Chamberlain D'Amanda Oppenheimer Greenfield, LLP, Rochester ( J. Michael Wood, Michael A. Sciortino and Michael T. Harren of counsel), for respondent.
Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
The Appellate Division correctly determined that the proffered writings failed to satisfy the statute of frauds (see Greneral Obligations Law § 5-701 [a] [1]). The writings, taken together, fail to contain all of the essential terms of the alleged agreement. Specifically, the writings make no mention of the alleged incorporation of the written agreement's noncompete clause into the subsequent oral agreement between the parties.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, with costs in a memorandum.