Opinion
December 3, 1979
In an action to recover damages for breach of contract and fraud, the defendant appeals from an order of the Supreme Court, Nassau County, dated May 24, 1979 which denied his motion to dismiss the complaint. Order reversed, on the law, without costs or disbursements, motion granted and complaint dismissed. Defendant's failure to assert the proper subsection of the statute in his dismissal motion should have been disregarded (see CPLR 2001), in view of the lack of prejudice to plaintiff who was well acquainted with the basis of his motion through defendant's memorandum of law and responded to it on the merits (see Nye v Dawes, 20 A.D.2d 680). Plaintiff's first cause of action for breach of an oral employment contract alleged to extend until she reached age 65 must fall as being within the Statute of Frauds (see General Obligations Law, § 5-701). Her allegations of partial performance are insufficient to remove the agreement from the operation of the statute (see Health Delivery Systems v Scheinman, 42 A.D.2d 566). Plaintiff's second cause of action must also be dismissed since promissory statements of actions to be performed in the future do not provide a basis for an action in fraud (see Adams v. Gillig, 199 N.Y. 314). Mangano, J.P., Gulotta, Cohalan and Gibbons, JJ., concur.