Singerman v. Reyes

659 N.Y.S.2d 762 | N.Y. App. Div. | 1997

Order, Supreme Court, New York County (Walter Schackman, J.), entered on or about April 10, 1996, which granted defendants’ motions to dismiss the action pursuant to CPLR 3012 (b), and denied plaintiffs’ cross motion for an extension of their time to serve a complaint or to compel defendants’ acceptance of the complaint already served, unanimously affirmed, without costs.

We agree with the motion court that the alleged oral contract was not capable of performance within one year (General Obligations Law § 5-701 [a] [1]; see, D & N Boening v Kirsch Beverages, 63 NY2d 449,456), and that plaintiffs failed to adduce evidence of part performance as would remove the alleged contract from the Statute of Frauds (see, Anostario v Vicinanzo, 59 NY2d 662, 664). Plaintiffs’ cause of action for quantum meruit is also without merit given their failure to adequately document the services they allegedly performed for defendants or, assuming that performance of such services could be documented, establish the reasonable value of those services (see, Geraldi v Melamid, 212 AD2d 575, 576). As the complaint lacks merit, the action was properly dismissed (see, Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904). Concur—Sullivan, J. P., Ellerin, Tom, Mazzarelli and Andrias, JJ.