Daniel Finley Allen & Co., Inc. v Island Rock Gym Corp.

[*1] Daniel Finley Allen & Co., Inc. v Island Rock Gym Corp. 2012 NY Slip Op 52179(U) Decided on November 26, 2012 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 26, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., IANNACCI and LaSALLE, JJ
2011-193 N C.

Daniel Finley Allen & Co., Inc., Respondent, Nov 26, 2012

against

Island Rock Gym Corp., Appellant.

Appeal from an order of the District Court of Nassau County, First District (Bonnie P. Chaiken, J.), entered December 20, 2010. The order denied defendant's motion for summary judgment dismissing the action.

ORDERED that the order is affirmed, without costs.

Plaintiff commenced this action to recover damages it allegedly incurred as a result of defendant's repudiation in year three of an alleged five-year renewal contract, pursuant to which plaintiff was to collect defendant's refuse on a weekly basis. The District Court denied defendant's motion for summary judgment dismissing the complaint, finding that there existed a question of fact as to the terms of the agreement between the parties.

On appeal, defendant argues that the signed page of the renewal contract was devoid of many essential elements of a contract, and that, even accepting plaintiff's contention that the contract's term was for five years, dismissal was mandated pursuant to the statute of frauds (General Obligations Law § 5-701 [a] [1]). We do not consider the latter argument, which is made for the first time on appeal. [*2]

We note that the parties were sharply divided as to the contents of the renewal contract. Whereas defendant's motion for summary judgment was premised upon its claim that the contract consisted solely of a one-page agreement which did not include, among other things, a term of five years, plaintiff proffered a second page, which, it contended, was part of the parties' contract and included extensive terms and conditions, including the provision for a five-year term. In this circumstance, we conclude that, due to the existence of material issues of fact, the District Court properly denied defendant's motion for summary judgment.

Accordingly, the order is affirmed.

Nicolai, P.J., Iannacci and LaSalle, JJ., concur.
Decision Date: November 26, 2012