PRITSKER v. SOYFERMAN (2000)

In an action to recover damages for breach of an oral contract, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Rappaport, J.), dated June 28, 1999, as granted the defendants' respective cross motions for summary judgment dismissing the complaint on the grounds that the action was barred by the Statute of Frauds and release.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

 The plaintiffs gave the defendants $100,000 toward the purchase of a restaurant.   According to the plaintiffs' own allegations, the parties' oral agreement required the defendants to repay the “loan” at a rate of $2,000 per month, including interest.   By its terms, the agreement could not be performed within one year.   Consequently, this action to recover the unpaid balance of the alleged loan is barred by the Statute of Frauds (see, General Obligations Law § 5-701;  A. Aversa Brokerage v. Honig Ins. Agency, 249 A.D.2d 345, 671 N.Y.S.2d 135).   As to the plaintiff Rita Pritsker, the action is also barred by the release executed by her in exchange for $30,000 and the defendants' promise to hold her harmless in the event any tax claims were made against the business.   The release clearly refers to the $100,000 as an “ investment” and not a loan and bars Rita Pritsker from making any further claim with regard to this money (see, Booth v. 3669 Delaware, 92 N.Y.2d 934, 680 N.Y.S.2d 899, 703 N.E.2d 757;  Rocanova v. Equitable Life Assur. Soc. of U.S., 83 N.Y.2d 603, 612 N.Y.S.2d 339, 634 N.E.2d 940).

The plaintiffs' remaining contentions are without merit.

MEMORANDUM BY THE COURT.