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

1082
CA 13-00515
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


MARY BETH DEJOHN, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

SPEECH, LANGUAGE & COMMUNICATION ASSOCIATES,
SLP, OT, PT, PLLC, TAMI D. TREUTLIEN AND
SCOTT TREUTLIEN, DEFENDANTS-APPELLANTS.


DIMATTEO LAW OFFICE, WARSAW (DAVID M. ROACH OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

BOUVIER PARTNERSHIP, LLP, BUFFALO (CHAD E. MURRAY OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John A.
Michalek, J.), entered October 9, 2012. The order denied the motion
of defendants to dismiss the complaint.

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

     Memorandum: On appeal from an order denying defendants’ motion
to dismiss the complaint pursuant to CPLR 3211 (a) (5), defendants
contend that Supreme Court erred in determining that an alleged oral
agreement between the parties is not void and unenforceable pursuant
to the statute of frauds (see General Obligations Law § 5-701 [a] [1];
see generally Hubbell v T.J. Madde Constr. Co., Inc., 32 AD3d 1306,
1306). The alleged oral agreement provided that defendants would
purchase plaintiff’s business for $480,000 and make an initial payment
of $10,000, followed by 23 monthly payments of $20,000 and a final
payment of $10,000. No party asserted that prepayment of the purchase
price was prohibited under the alleged oral agreement. Plaintiff
asserted that she fully performed her obligations under the alleged
oral agreement and that defendants made several payments thereunder
before defaulting. In support of the motion, defendant Tami D.
Treutlien averred that she and the other defendants did not reach an
agreement with plaintiff, but she did not specifically controvert that
payments were made to plaintiff.

     Taking plaintiff’s “allegations as true and resolv[ing] all
inferences which reasonably flow therefrom in [her] favor” (Cron v
Hargro Fabrics, 91 NY2d 362, 366), we conclude that the court properly
denied the motion. “As long as [an] agreement may be ‘fairly and
reasonably interpreted’ such that it may be performed within a year,
                                 -2-                         1082
                                                        CA 13-00515

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” (id. at 366). Here, the absence of
a term prohibiting payment in full within the first year makes
possible full performance of the alleged oral agreement within that
year, and thus defendants did not meet their burden of establishing
that the statute of frauds renders the alleged oral agreement void and
unenforceable (see Moon v Moon, 6 AD3d 796, 798).




Entered:   November 8, 2013                    Frances E. Cafarell
                                               Clerk of the Court
