Opinion
February 23, 1987
Appeal from the Supreme Court, Westchester County (Meehan, J.).
Ordered that the appeal from so much of the order as denied that branch of the defendants' cross motion which was for reargument is dismissed, as no appeal lies from the denial of reargument; and it is further,
Ordered that the order is otherwise affirmed insofar as appealed from; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
Special Term properly granted the plaintiff leave to serve an amended verified complaint. Leave to amend shall be freely granted (CPLR 3025 [b]) absent a showing of prejudice or surprise to the opposing party (Fahey v. County of Ontario, 44 N.Y.2d 934; Stow v. City of New York, 122 A.D.2d 45; Matter of Department of Social Servs. v. Jay W., 105 A.D.2d 19; Fending v Carborundum Co., 101 A.D.2d 1010). Further, upon consideration of the motion for leave to amend, Special Term should not examine the merits or legal sufficiency of the proposed added cause of action unless it is "clearly and patently insufficient on its face" (De Forte v. Allstate Ins. Co., 66 A.D.2d 1028; see also, General Motors Acceptance Corp. v. Shickler, 96 A.D.2d 926), or, at the very least, unless "a substantial question is raised as to the sufficiency or meritoriousness of [the] proposed pleading" (Sharapata v. Town of Islip, 82 A.D.2d 350, 362, affd 56 N.Y.2d 332).
In this case, the defendants' contention that the action is barred by the Statute of Frauds does not raise such a substantial question as to the sufficiency of the proposed added cause of action to recover damages for breach of contract. An employment contract with no fixed term, whether terminable at will or only for just cause, is not one which "by its terms" could not be performed within one year and, accordingly, it is not barred by the Statute of Frauds (Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458; North Shore Bottling Co. v. Schmidt Sons, 22 N.Y.2d 171).
Additionally, that branch of the defendants' cross motion which was for summary judgment was properly characterized by Special Term as an application for reargument. Since no appeal lies from an order denying reargument, the defendants' appeal as to that portion of the order must be dismissed (American Std. v. New York City Tr. Auth., 123 A.D.2d 339; Alessi v. County of Nassau, 100 A.D.2d 561). Bracken, J.P., Brown, Rubin and Spatt, JJ., concur.