Martin Greenfield Clothiers, Ltd., appellant, v. Brooks Brothers Group, Inc., respondent.
Argued—March 14, 2019
DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated September 28, 2017. The order granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the amended complaint.
ORDERED that the order is affirmed, with costs.
Based on the foregoing, the plaintiff, by its amended complaint, sought to recover damages for breach of contract and under the theory of promissory estoppel. The defendant made a pre-answer motion pursuant to CPLR 3211(a) to dismiss the amended complaint. The Supreme Court granted the motion, and the plaintiff appeals.
We agree with the Supreme Court's determination directing dismissal of the plaintiff's breach of contract cause of action pursuant to CPLR 3211(a)(5), since the alleged oral agreement is unenforceable as violative of the statute of frauds (see Uniform Commercial Code § 2–201; General Obligations Law § 5–701[a] ). The plaintiff's contention that UCC 2–201(1) is not applicable to the alleged oral agreement is improperly raised for the first time in a reply brief on appeal (see Coppola v. Coppola, 291 A.D.2d 477, 477). Further, contrary to the plaintiff's contention, the alleged oral agreement does not fall within the exception to UCC 2–201(1) for “specially manufactured” goods (Uniform Commercial Code § 2–201[a]; see e.g. Automated Cutting Techs., Inc. v BJS N. Am. E, Inc., 2012 WL 2872823, *5, 2012 U.S. Dist Lexis 96745, *15 [ED KY, July 12, 2012, No. 5:10–CV–208–REW] ). Moreover, the alleged oral agreement, which by its terms cannot be performed within one year, also is unenforceable under General Obligations Law § 5–701(a)(1) (see Halpern v. Shafran, 131 A.D.2d 434, 435–436; Tip Top Farms v. Dairylea Coop., 114 A.D.2d 12, 33, affd 69 N.Y.2d 625; cf. D & N Boening v. Kirsch Beverages, 63 N.Y.2d 449, 458).
In addition, we agree with the Supreme Court's determination directing dismissal of the plaintiff's promissory estoppel cause of action pursuant to CPLR 3211(a)(7) for failure to state a cause of action, as the cause of action is impermissibly predicated on allegations that the defendant violated the same promise it made under the oral agreement (see Celle v. Barclays Bank P.L.C., 48 AD3d 301, 303; Brown v. Brown, 12 AD3d 176, 176–177; see generally Clark–Fitzpatrick, Inc. v Long Is. R.R. Co., 70 N.Y.2d 382, 389–390). Moreover, to the extent that the plaintiff's promissory estoppel cause of action may have been asserted to circumvent the statute of frauds, the plaintiff was required, but failed to, assert that it suffered unconscionable injury in reliance on the defendant's alleged promise (see Carvel Corp. v. Nicolini, 144 A.D.2d 611, 612–613; D & N Boening v. Kirsch Beverages, 99 A.D.2d 522, 524, affd 63 N.Y.2d 449; Swerdloff v. Mobil Oil Corp., 74 A.D.2d 258, 263–264).
In light of our determination, we need not reach the parties' remaining contentions.
RIVERA, J.P., COHEN, MALTESE and BRATHWAITE NELSON, JJ., concur.
Clerk of the Court