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Supreme Court, Appellate Division, Fourth Department, New York.

F. Christopher HUBBELL, Plaintiff-Respondent, v. T.J. MADDEN CONSTRUCTION CO., INC., Defendant-Appellant.

Decided: September 29, 2006

PRESENT:  HURLBUTT, J.P., SCUDDER, GORSKI, AND GREEN, JJ. Kowalczyk, Tolles & Deery, LLP, Utica (Andrew S. Kowalczyk, Jr., of Counsel), for Defendant-Appellant. Cohen & Cohen LLP, Utica (Daniel S. Cohen of Counsel), for Plaintiff-Respondent.

Plaintiff commenced this breach of contract action to recover damages arising from defendant's alleged failure to pay plaintiff monies due for profit sharing and salary increases pursuant to an alleged oral agreement of employment.   Contrary to defendant's contention, Supreme Court properly denied defendant's motion for summary judgment dismissing the complaint on the ground that enforcement of the alleged oral agreement is barred under the statute of frauds (see General Obligations Law § 5-701[a][1] ), and the court properly sua sponte dismissed the affirmative defense based on the statute of frauds.   The record establishes that the subject oral agreement constitutes a “hiring at will, terminable at any time by either party” (Sabetay v. Sterling Drug, 69 N.Y.2d 329, 333, 514 N.Y.S.2d 209, 506 N.E.2d 919).   Thus, “the statute of frauds is not a bar to enforcement of the alleged oral agreement because its performance within one year was possible” (Air Masters v. Bob Mims Heating & Air Conditioning Serv., 300 A.D.2d 513, 515, 752 N.Y.S.2d 388;  see Stucklen v. Kabro Assoc., 18 A.D.3d 461, 462, 795 N.Y.S.2d 256).   Further, when “the measure of compensation has been fixed and earned during the same [one-year] period, the sole obligation to calculate such compensation will not bring the [agreement] within the ․ [s]tatute of [f]rauds” (Cron v. Hargro Fabrics, 91 N.Y.2d 362, 370, 670 N.Y.S.2d 973, 694 N.E.2d 56;  see Raes v. So-Lite Furniture Corp., 4 A.D.2d 851, 166 N.Y.S.2d 471).   Here, the alleged oral agreement of employment provided for annual compensation, profit sharing, and possible salary increases, and thus plaintiff's rights under the agreement could be fixed and earned within a one-year period, rendering section 5-701(a)(1) inapplicable to the agreement.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.