Opinion
November 15, 1993
Appeal from the Supreme Court, Suffolk County (Copertino, J.).
Ordered that the order is affirmed, with costs.
We agree with the Supreme Court that there is a question of fact as to whether the alleged oral contract contained a one-year guarantee against defects in workmanship that rendered the contract incapable of being performed in one year and thus unenforceable under General Obligations Law § 5-701 (see, Halpern v Shafran, 131 A.D.2d 434). Although the defendant presented unrefuted evidence that the plaintiff had received a copy of the portion of the prime contract that contained the job specifications, there was no evidence that the plaintiff had actual notice of the other provisions of the prime contract, specifically the section of the prime contract that contained its conditions, including the guarantee, and therefore whether that guarantee could have constituted a term of the oral contract.
We have considered the defendant's remaining contention and find it to be without merit. Thompson, J.P., Rosenblatt, Miller and Ritter, JJ., concur.