BIRNBAUM v. GOLDENBERG CONSULTING GROUP INC (2022)

Order, Supreme Court, Bronx County (Kim Adair Wilson, J.), entered on or about April 14, 2021, which denied plaintiff's motion for summary judgment, unanimously modified, on the law, upon a search of the record, to grant defendant summary judgment dismissing the complaint, and otherwise affirmed, without costs.  The Clerk is directed to enter judgment accordingly.  Order, same court and Justice, entered on or about June 28, 2021, which denied plaintiff's motion for leave to file an amended complaint, unanimously affirmed, without costs.

The alleged oral agreement upon which plaintiff sues is within the statute of frauds, since plaintiff contends that when he refers a job candidate to defendant, he is entitled to 50% of the fee defendants receive for placing the candidate, even when the candidate is placed more than a year after plaintiff's referral (General Obligations Law § 5–701[a][1];  see Zupan v. Blumberg, 2 N.Y.2d 547, 550, 552, 161 N.Y.S.2d 428, 141 N.E.2d 819 [1957];  Cohen v. Bartgis Bros. Co., 264 App.Div. 260, 260–261, 35 N.Y.S.2d 206 [1st Dept. 1942], affd 289 N.Y. 846, 47 N.E.2d 443 [1943]).  As a result, because plaintiff has fully executed the contract while defendant's obligation continues past a one-year period, the contract is not, by its terms, susceptible of performance within one year, and therefore must be in writing to be enforceable (General Obligations Law § Ó5–701[a][1];  see Nat Nal Serv. Stas. v. Wolf, 304 N.Y. 332, 337, 339, 107 N.E.2d 473 [1952]).  Although oral agreements that violate the statute of frauds are enforceable where the party to be charged admits having entered into the contract, defendant never admitted that it agreed to pay plaintiff a fee on placements occurring more than a year after a referral (see Matisoff v. Dobi, 90 N.Y.2d 127, 134, 659 N.Y.S.2d 209, 681 N.E.2d 376 [1997]).

The parties’ emails do not satisfy the statute of frauds, as they do not state or imply that plaintiff is entitled to 50% of defendant's fee even when defendant places candidates more than a year after plaintiff referred them (see Horowitz v. Santamaria, 287 A.D.2d 373, 373–374, 731 N.Y.S.2d 449 [1st Dept. 2001]).  Accordingly, the emails do not contain, either expressly or by reasonable implication, all the material terms of the purported agreement, as would be necessary to satisfy the statute of frauds (see Stefatos v. Fred–Doug Mgr., LLC, 116 A.D.3d 419, 982 N.Y.S.2d 886 [1st Dept. 2014], lv denied 24 N.Y.3d 908, 2014 WL 5394113 [2014];  McCollester v. Chisholm, 104 A.D.2d 361, 362, 478 N.Y.S.2d 691 [2d Dept. 1984], affd 65 N.Y.2d 891, 493 N.Y.S.2d 310, 482 N.E.2d 1226 [1985]).

The doctrine of part performance, even assuming it applies to General Obligations Law § 5–701 (see e.g. Horowitz, 287 A.D.2d at 374, 731 N.Y.S.2d 449), also does not serve to satisfy the statute of frauds.  Plaintiff's referrals of candidates to defendant are not unequivocally referable to an agreement that he would be paid half of defendant's fee even if the placement occurred more than a year later (see id.;  Naldi v. Grunberg, 80 A.D.3d 1, n. 17, 908 N.Y.S.2d 639 n.17 [1st Dept. 2010], lv denied 16 N.Y.3d 711, 2011 WL 1643544 [2011]).  On the contrary, plaintiff's actions are equally consistent with the agreement as alleged by defendant – that is, that defendant would split its fee with plaintiff if the candidate was placed during the trial period of plaintiff and defendant's business relationship (see Cunnison v. Richardson Greenshields Sec., 107 A.D.2d 50, 54, 485 N.Y.S.2d 272 [1st Dept. 1985]).

Supreme Court providently exercised its discretion in denying the motion for leave to file an amended complaint, as the claims in plaintiff's proposed amended complaint are palpably insufficient (Miller v. Cohen, 93 A.D.3d 424, 425, 939 N.Y.S.2d 424 [1st Dept. 2012]).

In light of our determination, we need not consider the parties’ remaining contentions.