Opinion
July 24, 1995
Appeal from the Supreme Court, Queens County (Modugno, J.H.O.).
Ordered that the amended judgment is modified, on the law, by deleting so much of the decretal paragraph thereof as imposed joint and several liability upon the defendant Bernd Schueren; as so modified, the amended judgment is affirmed, with costs to the plaintiffs.
The plaintiffs contend that they entered into an oral agreement with the defendant Bernd Schueren, the owner and president of the defendant S T World Products. The plaintiffs agreed to supply the defendants with 30 original designs that the defendants reproduced on T-shirts. The defendants agreed to pay the plaintiffs a 4% commission on all wholesale sales of the T-shirts. When it became clear to the plaintiffs that the defendants were selling the T-shirts without paying the 4% commission, the plaintiffs commenced this action.
The findings of the Supreme Court, including its finding that the parties' oral agreement does not violate the Statute of Frauds, are supported by the record.
In determining whether an agreement must be in writing pursuant to the Statute of Frauds, the question to be answered is whether the contract can conceivably be performed within one year ( see, General Obligations Law § 5-701 [a] [1]; D N Boening v. Kirsch Beverages, 63 N.Y.2d 449, 455; Americana Petroleum Corp. v Northville Indus. Corp., 200 A.D.2d 646). In this case, the plaintiffs presented unrebutted evidence that the oral agreement could be performed within one year since it could be terminated at any time, including within one year, by either party. Therefore, the agreement is enforceable.
However, the plaintiffs have failed to establish a basis for piercing the corporate veil in order to hold Schueren personally liable for the breach of the parties' agreement (see, Marino v Dwyer-Berry Constr. Corp., 146 A.D.2d 750). Rosenblatt, J.P., Copertino, Hart and Friedmann, JJ., concur.