"An oral agreement is enforceable under New York law and not within the Statute of Frauds if it can be construed as being capable of performance within one year of its making." Curtis v. Harry Winston, Inc., 653 F. Supp. 1504, 1510 (S.D.N.Y. 1987); see also Ohanian v. Avis Rent-a-Car Sys., Inc., 779 F.2d 101, 106 (2d Cir. 1985) ("The one-year provision has been held not to preclude an oral contract unless there is `not . . . the slightest possibility that it can be fully performed within one year.'") (citations omitted). The September 2002 Agreement was capable of performance within one year because both parties had the right to terminate the contractual relationship at will.
The acts that gave rise to this case were committed solely within the United States; a conflicts issue does not arise simply because one of the plaintiffs is a Spanish domiciliary. Curtis v. Harry Winston, Inc., 653 F. Supp. 1504 (S.D.N.Y. 1987), cited by Majorica, is not in point. There, subject matter jurisdiction was based solely on diversity jurisdiction, and the substantive claims related to monies owed to the Venezuelan plaintiff for work performed in Venezuela.
The reasoning in recent cases clarifies that this analogy is not generally applied to this type of case. See Randall v. Arabian Am. Oil Co., 778 F.2d 1146 (5th Cir. 1985); Curtis v. Harry Winston, Inc., 653 F. Supp. 1504 (S.D.N.Y. 1987). In Randall, the plaintiff sued his former employer under Saudi labor law for wrongful discharge from employment in Saudi Arabia.
See also, e.g., Sunstar, Inc. v. Alberto-Culver Co., 586 F.3d 487 (7th Cir. 2009) (applying Japanese law to trademark dispute); Lesley v. Spike TV, 241 Fed. App'x 357, 358 (9th Cir. 2007) (applying Japanese law to breach of contract claim and United States law to copyright claim); Servo Kinetics, Inc. v. Tokyo Precision Instruments Co. Ltd., 475 F.3d 783, 790-98 (6th Cir. 2007) (applying Japanese law to breach of contract claim and Michigan law to other claims); Medline Indus. Inc. v. Maersk Med. Ltd., 230 F. Supp.2d 857, 861-63 (N.D. Ill. 2002) (applying English law to contract and fraud claims and Illinois law to tortious interference claim); Curtis v. Harry Winston, Inc., 653 F. Supp. 1504, 1508-1510 (S.D.N.Y. 1987) (applying Venezuelan law to labor law claim and New York law to contract claim). Defendant contends that determining the meaning of foreign law will be both expensive and time-consuming, and therefore prejudicial.
Accordingly, where "employment [is] terminable at will . . . the statute of frauds is not a bar to enforcement of the alleged oral agreement because its performance within one year [is] possible." Id. See also Curtis v. Harry Winston, Inc. 653 F. Supp. 1504, 1510 (S.D.N.Y. 1987) (holding that statute of frauds does not prevent recovery on oral contract for an "at-will employee" who "could have been terminated . . . at any time"). Defendant neglected to plead a statute of frauds defense in answering plaintiff's complaint, and now moves the Court for leave to amend her answer.
The threshold issue before the court is whether, under New York law, the oral employment agreement made by Travelstead and Canet at the Piccolo Mondo dinner established an enforceable contract with respect to Canet's entitlement, first, to an annual bonus and, second, to equity participation in Travelstead projects. In general, the prohibition on enforcement of oral contracts contained within the Statute of Frauds, N.Y.Gen.Oblig.L. § 5-701, does not apply to employment contracts that are terminable at will, as termination may occur within one year. Ohanian v. Avis Rent A Car System, Inc., 779 F.2d 101, 108 (2d Cir. 1985); Curtis v. Harry Winston, Inc., 653 F. Supp. 1504, 1510 (S.D.N.Y. 1987) (Broderick, J.); Zinn v. Bernic Construction Inc., 99 Misc.2d 510, 416 N.Y.S.2d 725 (Sup.Ct.Queens County 1979). A more recent statement, albeit stating conditions for finding a contract within the Statute of Frauds, is found in Zaitsev v. Salomon Brothers, Inc., 60 F.3d 1001, 1003 (2d Cir. 1995): "Under New York law, however, if performance within one year depends upon an act solely within the control of the party seeking to enforce the oral agreement, the Statute of Frauds remains applicable."
Tischmann's argument that the Contract evinces the parties' intent to apply Massachusetts is unavailing. While Tischmann is correct that contracting parties may select the body of law to apply to an agreement, see Walter E. Heller Co. v. Video Innovations, Inc., 730 F.2d 50, 52 (2d Cir. 1984); Curtis v. Harry Winston, Inc., 653 F. Supp. 1504, 1509 (S.D.N.Y. 1987) (citing Silverman v. Worsham Bros. Co., 625 F. Supp. 820, 826 (S.D.N.Y. 1986)), the Contract upon which Tischmann relies expired more than fifteen months prior to the filing of the complaint. Tischmann is unable to offer any support for the proposition that parties are bound to the terms of an expired contract.
Wolde-Meskel v. Tremont Commonwealth Council, No. 93 CIV. 6515, 1994 WL 167977 (S.D.N.Y. Apr. 29, 1994) (citing Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 1011 n. 4, 91 L.Ed. 1209 (1947), overruled on other grounds,Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949)). Because a 12(b)(1) motion does not merely attack the face of the pleadings, Curtis v. Harry Winston, Inc., 653 F.Supp. 1504, 1505 n. 1 (S.D.N.Y.1987), the Court may consider evidence submitted outside the pleadings " by affidavit or otherwise." Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.1986) (citation omitted).
Id. at 1153. Accord Veitz v. Unisys Corp., 676 F. Supp. 99, 102 (E.D.Va. 1987); Curtis v. Harry Winston, Inc., 653 F. Supp. 1504, 1507-09 (S.D.N.Y. 1987). Defendants try valiantly to distinguish Randall, but to no avail. First, they argue that the Sandiganbayan provision at issue here is different because, aside from placing jurisdiction in the Sandiganbayan, it "expressly extinguished" any right to bring a civil action except as ancillary to a criminal proceeding, and thereby raised the standard of proof.
That the charge was inadequate must be conceded but the difficulty confronting plaintiff on this phase of its argument is the fact that no exception was taken to the charge of the court. In the absence of a general exception, the errors now complained of cannot be reviewed even though they had been assigned as error, (Curtis v. Winston, 186 Pa. 492, 40 A. 786; McConnell v. Penna. R.R. Co., 206 Pa. 370, 55 A. 1029; Lindsay v. Dutton, 227 Pa. 208, 75 A. 1096; Foley v. Phila.R.T. Co., 240 Pa. 169, 87 A. 289; Hirsch v. Hubert Trans. Stor. Co., 136 Pa. Super. 605, 8 A.2d 426) unless the errors are so basic and fundamental as to require the granting of a new trial. Patterson v. Pittsburgh Rys. Co., 322 Pa. 125, 185 A. 283; Williams v. Lumbermen's Ins. Co., 332 Pa. 1, 1 A.2d 658; Finkelstein et ux. v. McClain, 331 Pa. 198, 200 A. 596.