Opinion
No. CV–021765–12.
11-23-2015
PETRO INC., Plaintiff(s), v. Haron ZUBLI, Defendant(s).
Mullooly, Jeffrey, Rooney & Flynn, LLP, Syosset, for Plaintiff. Joshua Bronstein, Esq., PLLC, New York, for Defendants.
Mullooly, Jeffrey, Rooney & Flynn, LLP, Syosset, for Plaintiff.
Joshua Bronstein, Esq., PLLC, New York, for Defendants.
SCOTT FAIRGRIEVE, J.
The following named papers numbered 1 to 3 submitted on this Motion on October 9, 2015
papers numbered
Notice of Motion and Supporting Documents 1
Order to Show Cause and Supporting Documents
Opposition to Motion 2
Reply Papers to Motion 3
Defendant moves for an order pursuant to CPLR §§ 3211(a)(1) and (7) to dismiss the complaint as barred by the Statute of Frauds, failure to state a cause of action and a defense founded in documentary evidence.
Plaintiff commenced this action to recover the sum of $5,737.38 with interest from May 9, 2012.
The complaint alleges that plaintiff and defendant "entered into an agreement for delivery of oil and/or maintenance of burner." Plaintiff performed pursuant to the agreement for which payment was not made.
The second cause of action alleges an account stated for $5,737.38.
The answer dated July 30, 2012, denies liability, for the alleged debt. The answer failed to include as an affirmative defense the Statute of Frauds. However, the parties entered into a stipulation dated September 17, 2015, which deemed defendant's answer to include the affirmative defense of Statute of Frauds.
Defendant's Arguments
The affidavit of defendant Haron Zubli, sworn to on August 31, 2015, states that he has been a customer of plaintiff for over 25 years.
Defendant details, in his affidavit, the problems he had with plaintiff:
3.Milro installed an oversize tank in the basement it caused a lot of damage to the floor and to the walls around the tank. There are still difficulties in opening the entrance door all the way.
4.In the middle of the work, Petro demanded that I pay those excessive fees and the balance and refused to supply oil to the premises, it was winter time. I was dissatisfied with the work. I told Milro that the new tank does not fit the space and ask them to take it, they refused to do so and said only Petro can tell them that. At that point the burner broke down, since there was no oil. Petro abandoned the premises and left me with an oversized tank and damage to the floor and to the wall.
5.Frustrated, I contacted a different oil company, Midnight Heating services Inc, who install a whole new boiler for me. They came to the premises, reinstall the burner and fixed everything that was required for the heat to be back on. I paid them seven thousand dollars. ($7,000.00). I had to pay for construction work too.
6.I continued to pay PETRO their monthly bill although I stopped getting any oil services from Petro since April 2011. I paid them over $9,000, in 2011. I was a customer for 25 years, and paid them thousands during the years for service and care. When a problem with the heating happened they abandoned me to deal with it despite all their promises.
Defendant argues that the Statute of Frauds bars the action because the plaintiff's relationship with defendant was not in writing and could not be performed within one year. The following is written in the affirmation of Joshua Bronstein, Esq., dated August 25, 2015:
"Herein, plaintiff an oil company, with an indefinite term of duration agreement, did not provide in their discovery responses a signed written agreement with defendant."
Plaintiff's Arguments
In opposition, plaintiff submits the affidavit of Susan Stevenson, sworn to September 11, 2015, who is the Credit Manager of plaintiff. Ms. Stevenson states that plaintiff had an oral contract for deliveries of oil and a care plan for services to the boiler/tank. Susan Stevenson states that the following was the course of dealings between the parties:
2.The facts are as follows:
a.The defendant was a customer at Petro for many years.
b.He had an oral contract for deliveries of oil and a care plan for services to the boiler/tank.
c.Each time a service or delivery was made, defendant was sent an invoice and payment was due. Defendant never disputed any invoices.
d.Plaintiff performed all deliveries and service calls per the oral contract.
e.Defendant made numerous payments, until they ceased leaving the instant balance due, owed and duly demanded.
f.The oral contract could have been completed within one year.
Issue
Is plaintiff's action barred by the Statute of Frauds General Obligations Law § 5–701 ?
GOL § 5–701 states:
a. Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking:
1.By its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime;
In Constantini v. Bimco, 125 A.D.2d 531, 510 N.Y.S.2d 136 (Second Dep't, 1986), the Court held that the plaintiff's loan agreements were not barred by the Statute of Frauds because the agreements were open-ended with no set time for repayment.
GOL § 5–701 has been interpreted as only barring agreements that have no possibility in fact and law of full performance within one year. See Cron v. Hargro Fabrics, 91 N.Y.2d 362 (1998) ; Thurber Lbr. Co., Inc. v. Marcario, 29 Misc.3d 1220(A), 918 N.Y.S.2d 400, WL 4540441 (N.Y. Co Ct, 2010); and Josephberg v. Crede Capital Group, LLC, 2014 N.Y. Misc. Lexis 1857 (N.Y. Sup, 2014).
In NES Energy, Inc. v. Mazzarro, 29 Misc.3d 1220(A), 2010 WL 4540442 (County Ct, Suffolk Co 2010), the court summarized the manner in which GOL § 5–701 is applied:
An alleged oral agreement to pay money in installments is an "agreement that is not to be performed within one year," subject to the Statute of Frauds, when the installment payment obligation exceeds one year. 72 Am.Jur.2d, § 24, Statute of Frauds, July 2010. However, where the time of payment under the agreement is indefinite or dependent upon a contingency that may happen within one year, the agreement does not fall within the "agreement not to be performed within one year" provision. Id. The Court of Appeals has interpreted this section as barring those agreements that "have no possibility in fact and law of full performance within one year." ABKCO Music v. Montague, slip opinion, (SupCt, NYCounty, 2008). As long as the agreement may be "fairly and reasonably interpreted" such that it may be performed within a year, the Statute of Frauds will not act as a bar however unexpected, unlikely, or even improbable that such performance will occur during that time frame. Id. Open ended agreements with no set time for repayment do not violate the Statute of Frauds. Constantini v. Bimco Industries, 125 A.D.2d 531, 510 N.Y.S.2d 136 (2d Dep't, 1986). Where there is absolutely no possibility in fact and law of full performance by both parties within one year, the Statute of Frauds bars enforcement of an oral contract. Americana Petroleum Corp. v. Northville Industries Corp, 200 A.D.2d 646, 606 N .Y.S.2d 906 (2d Dep't 1994).
In the case at bar, the long term 25 year plus relationship between the parties based upon oral agreement(s) was open ended. No specific time for payment for the deliveries of oil and care plan for services to the boiler/tank was set or agreed upon. Thus, payment of the debt to plaintiff could be paid within one year, and, thus, not subject to GOL § 5–701. None of the facts asserted by plaintiff bring the case within the prohibition of GOL § 5–701.
Conclusion
The oral agreement(s) between the parties are not barred by GOL § 5–701.
The remaining relief requested by defendant for dismissal is denied as without merit.
This case is set down for a settlement conference with clients on Tuesday, January 5, 2016 at 10:00 a.m.
So Ordered.