Opinion
February 19, 1991
Appeal from the Supreme Court, Nassau County (Levitt, J.).
Ordered that the order and judgment is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.
The plaintiffs are former employees of several retail department stores formerly operated by the defendant, J.W. Mays, Inc. They allege that on September 26, 1988, the parties entered into an oral agreement whereby the defendant promised to pay incentive compensation to all merchandisers and buyers who remained in the defendant's employ, until it ceased retail operations, despite the possibility that it might cease such operations within three months. The defendant subsequently closed its department stores on December 31, 1988, and discharged its employees without fully making the promised incentive payments.
The plaintiffs commenced this action to recover damages for breach of the alleged incentive agreement in April 1989. Two months later, the defendant moved to dismiss the complaint upon the grounds that it failed to state a cause of action (see, CPLR 3211 [a] [7]), and that the plaintiffs' claims were barred by the Statute of Frauds (see, CPLR 3211 [a] [5]). The Supreme Court granted the defendant's motion and dismissed the complaint, concluding that it failed to state a cause of action because the oral agreement was not supported by consideration, and that the agreement violated the Statute of Frauds because it could not by its terms be performed within one year. We disagree.
It is well settled that the issue on a motion pursuant to CPLR 3211 (a) (7) is limited to ascertaining whether the pleading states any cause of action, and not whether there is evidentiary support for the complaint (see, Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275; Rovello v Orofino Realty Co., 40 N.Y.2d 633, 634; Holly v Pennysaver Corp., 98 A.D.2d 570, 571). The complaint must be liberally construed in the light most favorable to the plaintiffs and all factual allegations must be accepted as true (see, Guggenheimer v Ginzburg, supra; Shayne v Julien, Schlesinger Finz, 110 A.D.2d 761, 762; Holly v Pennysaver Corp., supra). Applying these principles at bar, we find that the plaintiffs sufficiently stated a cause of action.
Moreover, while the Statute of Frauds requires an agreement to be made in writing if, "[b]y its terms [it] is not to be performed within one year from the making thereof" (General Obligations Law § 5-701 [a] [1]), that provision applies only to agreements which by "their very terms have absolutely no possibility in fact and law of full performance within one year" (D N Boening v Kirsch Beverages, 63 N.Y.2d 449, 454; Apostolos v R.D.T. Brokerage Corp., 159 A.D.2d 62). In the instant case, where employment was at will, it was within the defendant's power to terminate the plaintiffs' employment at any time, thus creating the possibility that the incentive payments could have been made within one year. Consequently, we find that the oral agreement was not barred by the Statute of Frauds (see, North Shore Bottling Co. v Schmidt Sons, 22 N.Y.2d 171; see also, Samilson v Stahlwood Toy Mfg. Co., 154 A.D.2d 525, 526). Bracken, J.P., Eiber, Rosenblatt and Ritter, JJ., concur.