The Defendants submit the instant pre-answer motion seeking an order dismissing the Plaintiff's Complaint for failing to state a cause of action, pursuant to CPLR § 3211(a)(7) and based upon a Statute of Frauds defense, pursuant to CPLR § 3211(a)(5). The Plaintiff opposes the motion.

The Plaintiff commenced this action seeking to recover $5,472.25 from the Defendants for goods allegedly sold by the Plaintiff and delivered to the Defendants. The Defendants, through their counsel, claim that they are not liable because they never ordered the goods in question and that there is no writing sufficient to indicate that a contract of sale had been made between the parties, in compliance with the Statute of Frauds, UCC § 2-201(1). In opposition, relying on UCC § 2-201(2), the Plaintiff argues that a written contract is not required.

On a motion to dismiss pursuant to CPLR § 3211(a)(7), the pleading must be construed in a light most favorable to the pleader; and, all factual allegations must be accepted as true. See, Grand Realty Co. v. City of White Plains, 125 AD2d 639, 510 NYS2d 172 (2nd Dept. 1986); Barrows v. Rozansky, 111 AD2d 105, 489 NYS2d 481 (1st Dept. 1985); Rosen v. Watermill Development Corp., 1 AD3d 424, 786 NYS2d 474 (2nd Dept. 2003) "The criteria is whether the proponent of the pleading has a cause of action, not whether he has stated one." Guggenheimer v. Ginzburg, 43 NY2d 268, 401 NYS2d 182 (1977); See also: Leon v. Martinez, 84 NY2d 83, 614 NYS2d 972 (1994). If the pleading contains factual allegations which taken together manifest any cause of action cognizable at law, the motion must be denied, Becker v. Schwartz, 46 NY2d 401, 413 NYS2d 895 (1978); Natural Organics, Inc. v. Smith, 38 AD3d 628, 832 NYS2d 76 (2nd Dept. 2007); Aranki v. Goldman & Associates, LLP, 34 AD3d 510, 825 NYS2d [*2]97 (2nd Dept. 2006), regardless of whether the Plaintiff will ultimately prevail on the merits. Sanders v. Winship, 57 NY2d 391, 456 NYS2d 720 (1982); Guren v. County of Suffolk, 187 AD2d 560, 590 NYS2d 217 (2nd Dept. 1992); Bovino v. Village of Wappingers Falls, 215 AD2d 619, 628 NYS2d 508 (2nd Dept. 1995)

The Statute of Frauds, is an affirmative defense. Con-Solid Contracting, Inc. v. Litwak Development Corp., 236 AD2d 437, 654 NYS2d 593 (2nd Dept. 1997); Bryant v. Broadcast Music, Inc., 27 AD3d 683, 810 NYS2d 910 (2nd Dept. 2006); 23/23 Communications Corp. v. General Motors Corporation, 257 AD2d 367, 683 NYS2d 43 (1st Dept. 1999) The Plaintiff is under no obligation to allege compliance with the Statute of Frauds. Raoul v. Olde Village Hall, Inc., 76 AD2d 319, 430 NYS2d 214 (2nd Dept. 1980 ); Bell v. Kavy, 43 NYS2d 934 (S.C. Kings Co. 1943) As noted by the court in Piccione v. Schultz, 198 Misc. 876, 99 NYS2d 785 (S.C. Queens Co. 1950), "The Statute of Frauds, ... , bars the remedy, not the right." Based thereon, it must be recognized that a "complaint based, on its face, upon an oral contract for sale ... states a valid cause of action subject to being defeated by a proper interposition of the defense of the statute (see Simpson, Contracts (2d ed.), s 91; 2 Corbin, Contracts, s 317)." Raoul v. Olde Village Hall, Inc., , supra .

Addressing this threshold question, it is the opinion of this court that the Complaint herein does state a cause of action for breach of contract for goods sold and delivered. Accordingly, that branch of the Defendants' motion which seeks the dismissal of the Complaint, pursuant to CPLR § 3211(a)(7) is denied.

That branch of the Defendants' motion seeking dismissal pursuant to CPLR § 3211(a)(5) must be denied as well. While a defense of the Statute of Frauds is properly raised in such a motion, it is incumbent upon the Defendants to show, by an affidavit from a person having knowledge of the facts, that there was, in fact, no written contract, note or memorandum with regard to the sales alleged by the Plaintiff. See: Subgar Realty Corp. v. Gothic Lumber & Millwork, Inc., 80 AD2d 774, 436 NYS2d 740 (1st Dept. 1981); Fallsview Glatt Kosher Caterers, Inc. v. Rosenfeld, 7 Misc 3d 557, 794 NYS2d 790 (Civ.Ct. Kings Co. 2005) This the Defendants have failed to properly do.

The Defendants attempt to support their motion, in the first instance, with nothing more than a written statement made by their attorney, who has no personal knowledge of this matter. Moreover, the document submitted in counsel's name is neither an affidavit nor an affirmation, but simply a statement which is neither sworn to nor affirmed.^[FN1] CPLR § 2106 allows an attorney, who is not a party, to submit a written statement, "with the same force and effect as an affidavit[,]" where it is "subscribed and affirmed by him to be true under the penalties of perjury." Counsel's statement merely avers that he is "an attorney duly admitted to practice law in courts of the state of New York, and, on behalf of the above-named defendants, move to dismiss the above-captioned case pursuant to CPLR § 3211." The failure of counsel to either subscribe and affirm his statement "under the penalties of perjury" or by making specific reference to CPLR § 2106 renders his papers incompetent. See: John H. Dair Building Construction Co. v. Mayer, 31 AD2d 835, 298 NYS2d 122 (2nd Dept.1969); Rodriguez v. Chassin, 235 AD2d 832, 652 NYS2d 423 (3rd Dept.1997); Jones v. Schmitt, 7 Misc 3d 47, 794 [*3]NYS2d 568 (App.Term 2nd & 11th Jud. Dists. 2005) The Defendants' attempt to cure this deficiency by submitting an affidavit of the Defendant, Howard Friedman, for the first time in reply is improper and will not be considered. Klimis v. Lopez, 290 AD2d 538, 736 NYS2d 697 (2nd Dept. 2002); Voytek Technology, Inc. v. Rapid Access Consulting, Inc., 279 AD2d 470, 719 NYS2d 112 (2nd Dept. 2001)

Based upon the foregoing, the Defendants' motion is denied in its entirety.This constitutes the decision and order of this court.

Dated: Hempstead, New York

September 12, 2007

___________________________

Andrew M. Engel

J.D.C.