Weitz v. Smith
| Decision Date | 09 September 1996 |
| Citation | 647 N.Y.S.2d 236,231 A.D.2d 518 |
| Parties | Andree WEITZ, Appellant, v. Michael SMITH, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Stein Riso Haspel & Jacobs, L.L.P., New York City (Gerald A. Riso, of counsel), for appellant.
Skadden, Arps, Slate, Meagher & Flom, New York City (David A. Fleissig, of counsel), for respondent.
Before BRACKEN, J.P., and SANTUCCI, McGINITY and LUCIANO, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages, inter alia, for breach of contract and fraud, the plaintiff appeals from an order of the Supreme Court, Nassau County (Kutner, J.), entered June 14, 1995, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff, Andree Weitz, commenced this action against the defendant, Michael Smith, seeking to enforce an alleged oral agreement consummated between her husband, Louis Weitz, who was acting as her agent, and the defendant Smith. Smith disputes that an oral agreement was reached. According to the plaintiff and her husband, Smith agreed to purchase in her name a certain number of shares of the outstanding common stock of A.T.S. Money Systems, Inc. (hereinafter ATS) from PSI Capital Corp. (hereinafter PSI). Smith was to hold the shares as collateral for two years at which time the plaintiff would pay him the purchase price plus 12% interest and an additional sum of $24,000. The plaintiff alleges that Smith purchased the shares of stock of ATS and then repudiated the alleged oral agreement.
Because the alleged oral agreement could not be performed within a year from its making, it was subject to the Statute of Frauds requirement of a writing. Accordingly, the alleged oral agreement is invalid and unenforceable under the Statute of Frauds since an oral agreement is void when by its terms it cannot be performed within one year from its making (see, General Obligations Law § 5-701[a][1]; see also, Bayside Health Club v. Weidel, 170 A.D.2d 474, 565 N.Y.S.2d 560; Beldengreen v. Ashinsky, 139 Misc.2d 766, 528 N.Y.S.2d 744).
It is well settled that to recover damages for fraud, the fraud alleged cannot relate to a breach of contract (see, Jackson Heights Medical Group v. Complex Corp., 222 A.D.2d 409, 634 N.Y.S.2d 721; Americana Petroleum Corp. v. Northville Indus. Corp., 200 A.D.2d 646, 647-648, 606 N.Y.S.2d 906). In order to state a cause of action to recover damages for fraud, a plaintiff...
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...for the same reasons that the fraud and misrepresentation claims interposed against Cashin were dismissed (see, Weitz v. Smith 231 A.D.2d 518, 647 N.Y.S.2d 236). The Plaintiffs fifth and sixth causes of action for fraud and misrepresentations cannot survive the scrutiny of a motion to dismi......
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