        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1239
CA 14-00734
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


JOSEPH STEVENS, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

KAREN PERRIGO, ESQ., CPA, DEFENDANT-APPELLANT.


SHANE AND REISNER, LLP, OLEAN (JEFFREY P. REISNER OF COUNSEL), FOR
DEFENDANT-APPELLANT.

RICHARDSON & PULLEN, P.C., FILLMORE (RICHARD M. BUCK, JR., OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Allegany County
(Terrence M. Parker, A.J.), entered July 12, 2013. The order denied
defendant’s motion to dismiss plaintiff’s complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
breach of contract and fraudulent inducement arising from negotiations
to purchase defendant’s accounting practice. Defendant moved to
dismiss the complaint pursuant to CPLR 3211 (a) (1), (5), and (7), and
Supreme Court denied the motion. We affirm.

     “On a motion to dismiss pursuant to CPLR 3211, the pleading is to
be afforded a liberal construction . . . We accept the facts as
alleged in the complaint as true [and] accord plaintiff[] the benefit
of every possible favorable inference” (Leon v Martinez, 84 NY2d 83,
87; see Baumann Realtors, Inc. v First Columbia Century-30, LLC, 113
AD3d 1091, 1092). “Under CPLR 3211 (a) (1), a dismissal is warranted
only if the documentary evidence submitted conclusively establishes a
defense to the asserted claims as a matter of law” (Leon, 84 NY2d at
88; see Wells Fargo Bank, N.A. v Zahran, 100 AD3d 1549, 1550, lv
denied 20 NY3d 861). Here, contrary to defendant’s contention,
“[d]ismissal is not warranted under CPLR 3211 (a) (1) because the
documentary evidence . . . fails to establish conclusively that there
was no agreement between defendant[] and plaintiff[]” (Watts v
Champion Home Bldrs. Co., 15 AD3d 850, 851).

     Defendant further contends that the court erred in failing to
dismiss the complaint pursuant to CPLR 3211 (a) (5) inasmuch as the
alleged oral agreement between the parties is void and unenforceable
pursuant to the statute of frauds (see General Obligations Law § 5-701
                                 -2-                          1239
                                                         CA 14-00734

[a] [1]; see generally Hubbell v T.J. Madden Constr. Co., Inc., 32
AD3d 1306, 1306). We reject that contention. “As long as [an]
agreement may be ‘fairly and reasonably interpreted’ such that it may
be performed within a year, the [s]tatute of [f]rauds will not act as
a bar [to enforcing it] however unexpected, unlikely, or even
improbable that such performance will occur during that time frame”
(Cron v Hargro Fabrics, 91 NY2d 362, 366; see DeJohn v Speech,
Language & Communication Assoc., SLP, OT, PT, PLLC, 111 AD3d 1313,
1313). Here, although the parties’ original agreement provided that
the purchase price would be paid in monthly installments over a period
of five years, the agreement was revised to provide that if plaintiff,
inter alia, transferred the accounting practice or ceased to practice
for a period of 30 days, plaintiff would owe defendant the remainder
of the purchase price in a lump sum. Thus, because plaintiff could
have fully performed the alleged agreement within the first year by
paying defendant such a lump sum, defendant did not meet her burden of
establishing that the statute of frauds renders the agreement void and
unenforceable (see DeJohn, 111 AD3d at 1313-1314; American Credit
Servs. v Robinson Chrysler/Plymouth, 206 AD2d 918, 918-919).

     Contrary to the further contention of defendant, we conclude that
the court properly denied that part of her motion seeking dismissal of
the cause of action for fraudulent inducement pursuant to CPLR 3211
(a) (7). “In determining whether a complaint fails to state a cause
of action, a court is required to ‘accept the facts as alleged in the
complaint as true, accord plaintiff[] the benefit of every possible
favorable inference, and determine only whether the facts as alleged
fit within any cognizable legal theory’ ” (Daley v County of Erie, 59
AD3d 1087, 1087, quoting Leon, 84 NY2d at 87-88; see generally CPLR
3211 [a] [7]). Here, we conclude that plaintiff sufficiently alleged
the elements of a cause of action for fraudulent inducement, and
pleaded with the requisite specificity the alleged misrepresentations
made by defendant (see Flandera v AFA Am., Inc., 78 AD3d 1639, 1640;
Wright v Selle, 27 AD3d 1065, 1067; see generally CPLR 3016 [b]).




Entered:   November 21, 2014                    Frances E. Cafarell
                                                Clerk of the Court
