Kosson v. Algaze

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84 N.Y.2d 1019 (1995)

646 N.E.2d 1101

622 N.Y.S.2d 674

Harlan Kosson, Appellant, v. Joshua "Algaze" et al., Respondents.

Court of Appeals of the State of New York.

Decided January 17, 1995.

Ravi Batra, New York City, for appellant.

Proskauer Rose Goetz & Mendelsohn, New York City (Edward S. Kornreich and J. Elizabeth Scherl of counsel), for respondents.

Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur; Chief Judge KAYE taking no part.


The order of the Appellate Division should be affirmed, with costs.

In order to defeat defendants' motion for summary judgment, plaintiff had the burden of showing "`"facts sufficient to require a trial of any issue of fact"'" (Zuckerman v City of New York, 49 N.Y.2d 557, 562; CPLR 3212 [b]). As applied here, plaintiff had to submit evidentiary facts that he was employed by defendant St. Luke's/Roosevelt Hospital Center for a fixed duration pursuant to a definite written contract of employment. In his complaint, plaintiff did not allege the existence of a written contract of employment and in a supplemental affidavit he submitted before any responsive pleading, plaintiff only referred to certain noncontractual documents as "confirm[ing] part of the contract" between him and the hospital. The documents referred to were clearly insufficient to satisfy the Statute of Frauds. Only after defendants interposed defenses based in part upon the Statute of Frauds did plaintiff aver the existence of a written contract, his copy of which allegedly *1021 had been lost. This averment was made in conclusory fashion and was inconsistent with plaintiff's previous reliance on confirmatory noncontractual documents to establish his agreement. Thus, the Appellate Division correctly found that plaintiff had failed to meet the burden of making a sufficient factual showing.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.