81 A.D.2d 576 | N.Y. App. Div. | 1981
— In an action for specific performance of an oral agreement to divide stock ownership of a close corporation and to recover money damages, plaintiff appeals from a judgment of the Supreme Court, Suffolk County, entered October 6, 1980, dismissing his complaint upon the granting of defendants’ motion pursuant to CPLR 3211 (subd [a], par 5). Judgment reversed, on the law, with $50 costs and disbursements, and defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (subd [a], par 5) is denied. In an action for specific performance and money damages, plaintiff alleges an oral agreement whereby services were to be exchanged for salary and 50% stock ownership in a close corporation. On the eve of trial, defendants moved to dismiss pursuant to CPLR 3211 (subd [a], par 5) on the ground that the Statute of Frauds (Uniform Commercial Code, § 8-319) barred plaintiff’s suit. Though untimely, Special Term considered the motion on the basis of a stipulation by the parties limiting the issue to whether, assuming an oral agreement had been made, the action would be barred by section 8-319. In determining whether a “sale of securities” is involved, section 8--319 of the Uniform Commercial Code should be read in conformity with the Statute of Frauds in article 2 of the code (Uniform Commercial Code, § 2-201). Under article 2 (§ 2-106, subd [1]), a “sale” is the passing of title between a buyer and seller for a “price”. Subdivision (1) of section 2-304 of the code provides that “price can be made payable in money or otherwise.” Whether the term