68 N.Y.2d 705 | NY | 1986
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be modified, with costs to plaintiff, and the case remitted to the Appellate Division, Second Department, for further proceedings in accordance with this memorandum, and, as so modified, the order should be affirmed.
Our examination of the record persuades us that the Appellate Division erred in concluding that there was insufficient evidence, as a matter of law, of the existence of a valid contract. The Statute of Frauds was waived by defendant by its failure to assert it in a timely manner (see, CPLR 3211 [e]). Hence, plaintiff’s testimony, combined with the document signed by the codefendant, sufficed to sustain the jury’s verdict against the claim of insufficiency. Similarly, there was sufficient evidence to support the remaining elements necessary to the compensatory portion of the award (see generally, Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d 183; PJI 3:56). Accordingly, this part of the case must be remitted to the Appellate Division for that court to exercise its power to review the facts to determine if the verdict was against the weight of the evidence (see, Cohen v Hallmark Cards, 45 NY2d 493).
As to plaintiff’s claim for punitive damages, however, we agree with defendant that the award was not supported by sufficient evidence and must be dismissed (see, James v Powell, 19 NY2d 249; Walker v Sheldon, 10 NY2d 401).
Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur in memorandum.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified, etc.
