Summary judgment based upon General Obligations Law §5-701, ("the Statute of Frauds"), does not lie, insofar as the defendant has not established, as a matter of law, (a) that plaintiff's cause of action is based upon an oral contract subject to the Statute of Frauds, as opposed to a quantum meruit theory, and (b)that if plaintiff's cause of action is contractual, based upon an oral contract, the plaintiff's work was incapable of being performed [*2]within a year.

Plaintiff herein seeks to recover under a quantum meruit theory for labor performed as consulting supervisor of sandblasting and painting work defendant MATSOS CONTRACTING CORP. was contractually required to perform on a public project.

Defendant claims that plaintiff abandoned the project and failed to perform his duties and responsibilities as consulting supervisor thereunder (see, affidavit of Emily Shinas, at paragraph 16). Plaintiff essentially controverts that allegation, stating that, when he left, the work which he was hired to supervise was substantially completed, except for the painting of lines on the roadway which was a few hours of work (see, affidavit of Grigorious Bellos, at paragraph 9, pp. 2-3). If defendant's allegation is believed, plaintiff's breach in abandoning the project might well prevent recovery under a contractual theory, leaving unjust enrichment as his sole basis for recovery. The statute of frauds is not an automatic bar to a cause of action for unjust enrichment (see, Kennedy v. Leibowitz, 303 AD2d 375 [2d Dept. 2003]; RTC Props. v. Bio Res., Ltd., 295 AD2d 285 [1st Dept. 2002]; Farash v. Sykes Datatronics, 59 NY2d 500 [1983]). If plaintiff's allegation is believed, then he might recover under an oral-contract theory, provided that the material terms of the contract can be established, thereby satisfying the Statute of Frauds (see, e.g., Lanzet v. Eastern Wholesale Fence Co., 213 A.D. 610 [2d Dept. 1995]).

While not raised by the defendant, the lack of an essential term, such as the duration of the agreement, would fail to satisfy the Statute of Frauds, and hence, the plaintiff would not be entitled to recover on an oral-contract theory for that reason (see, Lanzet v. Eastern Wholesale Fence Co., supra ). Thus, the plaintiff's sole remedy in that instance would be in quantum meruit.

Accordingly, there is an issue of fact as to whether plaintiff can recover hereunder under a quantum meruit theory, and defendant has not established as a matter of law that plaintiff's redress is in fact based upon an oral-contract theory, to which the Statute of Frauds would be a bar.

Moreover, it is essentially conceded that defendant requested, consented and acquiesced to plaintiff performing the work as consulting supervisor on the subject project, and that plaintiff at least partially, if not substantially, performed the work for which he was hired (see, Whitehorn Associates, Inc. v. One Ten Brokerage, 264 AD2d 516 [2d Dept. 1999]). Thus, assuming arguendo, that [*3]plaintiff's action sounds in contract, it is well settled that the defendant's admission of the existence and essential terms of the oral agreement would be "sufficient to take the agreement outside the scope of the Statute of Frauds" (see, Concordia Gen. Contr. v. Peltz, 782 NYS2d 848 [2d Dept. 2004], citing Dzek v. Desco Vitroglaze of Schenectady, 285 AD2d 926, 927 [3d Dept. 2001]; Matisoff v. Dobi, 90 NY2d 127, 134 [1997]). The Statute of Frauds was not enacted "to enable defendants to interpose [it] as a bar to a contract fairly, and admittedly, made" (Morris Cohon & Co. v. Russell, 23 NY2d 569, 574 [1969]).

Even were the Statute of Frauds to apply, defendant has further failed to establish as a matter of law that the plaintiff's work, by its terms, was incapable of being completed in a year. It is uncontroverted that plaintiff was retained to supervise sandblasting and painting work which was completed during that time, and the defendant failed to establish a duration for the plaintiff's "at-will" employment.

The general rule is stated thus in 56 NY Jur, Statute of Frauds, § 19:

The fact that it is improbable, or almost impossible, that an oral contract which is susceptible of performance within one year, will actually be fully performed within such period, generally, but not invariably, does not result in bringing such agreement within the scope of the one-year statute of frauds. Thus, in cases involving this question, but in which the question as to the intention or expectation of the parties as to the length of time before performance would be completed, or as to the necessity that the contract show that it was not to be performed within one year, was apparently not considered, it has been held that such a contract was not within the statute, regardless of whether or not full performance within one year was improbable, or almost impossible.

The test, then, is possibility or impossibility, rather than probability or improbability, of performance within the statutory period.

Defendant avers in its response to interrogatories that the plaintiff was in its employ for 10 weeks. Plaintiff's submissions establish that his work was performed over 13-1/2 weeks on the subject project. Defendant has not proffered evidence as to the duration of the plaintiff's work. Thus, defendant has failed to establish as a matter of law that the plaintiff's work as consulting supervisor of sandblasting and painting on the subject project was incapable of being completed within a year (cf., Durante Bros. Constr. Corp. v. College Point Sports Ass'n, 207 AD2d 379 [2d Dept. 1994]).

Finally, the defendant failed to demonstrate, as a matter of law, that the plaintiff wilfully exaggerated the subject lien (see, Fidelity NY v. Kensington-Johnson Corp., 234 AD2d 263 [2d Dept. 1996]). The fact that a lien may contain improper charges does not, in and of itself, establish that a plaintiff wilfully exaggerated a lien (see, Minelli Constr. Co. v. Arben Corp., 1 AD3d 580 [2d Dept. 2003]; Exec. Towers at Lido, LLC v. Metro Constr. Servs., 303 AD2d 545 [2d Dept. 2003]; East Hills Metro, Inc. v. J.M. Dennis Constr. Corp., 277 AD2d 348 [2d Dept. 2000]; Goodman v. Del-Sa-Co Foods, 15 NY2d 191 [1965]; Fidelity NY v. Kensington-Johnson Corp., supra ). This is particularly true in light of the requirement that Lien Law § 39-a must be strictly construed in favor of the party against whom the penalty is sought to be imposed (see, Goodman v. Del-Sa-Co Foods, supra ; Pyramid Champlain Co. v. Brosseau & Co., 267 AD2d 539 [3d Dept. 1999]; Guzman v. Estate of Fluker, 226 AD2d 676 [2d Dept. 1996]; Wellbilt Equip. Corp. v. Fireman, 275 AD2d 162 [1st Dept. 2000]).

Accordingly, defendants' motion is denied in all respects.

Dated: November 17, 2004

JANICE A. TAYLOR, J.S.C.

7146-04_Bellos_SJ_Construction_Contract