Fletcher v. Greiner
| Decision Date | 03 December 1979 |
| Citation | 73 A.D.2d 591,422 N.Y.S.2d 130 |
| Parties | Virginia FLETCHER, Respondent, v. Sherwood W. GREINER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Redmond & Pollio, P. C., Garden City (John T. Redmond and Arthur C. Schupbach, Garden City, of counsel), for appellant.
Peter J. Unger, New York City, for respondent.
Before MANGANO, J. P., and GULOTTA, COHALAN and GIBBONS, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for breach of contract and fraud, the defendant appeals from an order of the Supreme Court, Nassau County, dated May 24, 1979 which denied his motion to dismiss the complaint.
Order reversed, on the law, without costs or disbursements, motion granted and complaint dismissed.
Defendant's failure to assert the proper subsection of the statute in his dismissal motion should have been disregarded (see CPLR 2001), in view of the lack of prejudice to plaintiff who was well acquainted with the basis of his motion through defendant's memorandum of law and responded to it on the merits (see Nye v. Dawes, 20 A.D.2d 680, 246 N.Y.S.2d 282).
Plaintiff's first cause of action for breach of an oral employment contract alleged to extend until she reached age 65 must fall as being within the Statute of Frauds (see General Obligations Law, § 5-701). Her allegations of partial performance are insufficient to remove the agreement from the operation of the statute (see Health Delivery Systems v. Scheinman, 42 A.D.2d 566, 344 N.Y.S.2d 190).
Plaintiff's second cause of action must also be dismissed since promissory statements of actions to be performed in the future do not provide a basis for an action in fraud (see Adams v. Gillig, 199 N.Y. 314, 92 N.E. 670).
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Fletcher v. Greiner
...defendant damages for breach of an oral contract of lifetime employment and for fraud. The complaint was dismissed on December 3, 1979 (73 A.D.2d 591, 422 N.Y.S.2d 130). The within matter came before this Court on a motion by plaintiff, inter alia, to strike several items from the demand fo......
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Bianchi v. Woodard
...Furthermore, failure to fulfil promises to perform acts in the future is a breach of contract, and not fraud. Fletcher v. Greiner, 73 AD2d 591, 422 N.Y.S.2d 130 (2d Dept. 1979) ; Wegman v. Dairylea Coop., 50 AD2d 108, 376 N.Y.S.2d 728, app. dism. , 38 NY2d 710, 382 N.Y.S.2d 1030, 346 N.E.2d......
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Gould v. Community Health Plan of Suffolk, Inc.
...Furthermore, failure to fulfil promises to perform acts in the future is a breach of contract, and not fraud (see Fletcher v. Greiner, 73 A.D.2d 591, 422 N.Y.S.2d 130; Wegman v. Dairylea Coop., 50 A.D.2d 108, 376 N.Y.S.2d 728, app. dsmd. 38 N.Y.2d 710, 382 N.Y.S.2d 1030, 346 N.E.2d 829). Pl......
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Farkas v. Tarrytown Lumber, Inc.
...not have been prejudiced by this defect in form, and his hypertechnical argument must be rejected (see, CPLR 2001; Fletcher v. Greiner, 73 A.D.2d 591, 422 N.Y.S.2d 130; Holy Spirit Assn. for Unification of World Christianity v. Harper & Row, 101 Misc.2d 30, 420 N.Y.S.2d Nor does the decisio......