Pazaaz Communications, Inc. v Controlotron Corp.
Annotate this CaseDecided on February 1, 2006
Supreme Court, Nassau County
Pazaaz Communications, Inc., Plaintiff,
against
Controlotron Corporation, Defendant.
1251/04
Stephen A. Bucaria, J.
This motion, by defendant, for an order pursuant to CPLR 3212, seeking summary judgment against the plaintiff, on the ground that there are no triable issues of fact, the cause of action has no merit and the cause of action is barred by the statute of frauds, and for such other relief as the Court deems just and proper, is determined as hereinafter set forth.
This action sounds in contract, which was entered into between the parties, wherein the plaintiff was to provide marketing and advertising services to the defendant in exchange for payment. Documentary evidence demonstrates that a contract for the services of the plaintiff was entered into in November 2000 for a period of three months the payment was to be $50 per hour for a minimum of 96 hours per month. After the [*2]contract's expiration, the defendant continued to utilize the plaintiff's services at the same rate of pay.
PAZAAZ COMMUNICATIONS, INC.Index no. 1251/04
The defendant asserts that the business relations between the parties, after the expiration of the contract, continued on an as-needed basis. The defendant refused to enter into another contract with the plaintiff because it did not wish to enter into a long obligation. At the end of the relationship in September 2001, the defendant asked the plaintiff to discontinue performing services for the defendant and a dispute arose for the time period between July 20, 2001 and August 31, 2001 and a settlement was reached in the amount of $5,375. The defendant's attorney asserts that it is undisputed that all services actually performed have been paid for. He further asserts that the Statute of Frauds bars this action because the proposed contract was to run for one year, it was not executed, and the services performed were paid for and not evidence of partial performance, which does not validate such contract. He argues that the plaintiff's testimony (that no work was performed for a period of time) contradicts the allegations in the complaint, that the plaintiff provided services to the defendant during the term of the contract.
The plaintiff, through its attorney, asserts that the defendant verbally approved the written contract after it was submitted to the defendant and the parties continued their relationship on the same terms and conditions of that initial three month contract, i.e., the hours per month and hourly pay. He argues, on behalf of the plaintiff, that the plaintiff worked for the defendant after that verbal approval of the contract, and that there is no confirmation of notification, by the defendant to the plaintiff, that the contract was not being signed and that any of the plaintiff's work for the defendant was on a per diem basis. He further argues that the difference in testimony on the acceptance/approval of the contract is critical and that precludes summary judgment. He contends that case law denies the enforcement of the Statute of Frauds when oral representations were made, and the use of the Statute of Frauds would be barred by equitable estoppel. He further contends that the electronic communication has proven that the contract was being made, which precludes the use of the Statute of Frauds.
The defendant argues that the promissory estoppel theory relied upon by the plaintiff, cannot be applied herein because the result met herein is not unconscionable, i.e., that the plaintiff was paid for the work that was performed, and the money sought was for work that was not performed. Conversely, the plaintiff is seeking to be paid for work she did not perform. The defendant also argues that the series of e-mails, that the plaintiff asserts takes this situation out of the Statute of Frauds, does not unequivocally [*3]state that an agreement had already been entered into.
PAZAAZ COMMUNICATIONS, INC.Index no. 1251/04
DECISION
The rule in motions for summary judgment has been succinctly re-stated by the Appellate Division, Second Dept., in (Stewart Title Insurance Company, Inc. v Equitable Land Services, Inc., 207 AD2d 880, 616 NYS2d 650, 651, 1994):
"It is well established that a party moving for summary
judgment must make a prima facie showing of entitlement
as a matter of law, offering sufficient evidence to demonstrate
the absence of any material issues of fact (Winegrad v New
York Univ. Med. Center, 64 NY2d 851, 853, 487 NYS2d
316, 476 NE2d 642; Zuckerman v City of New York, 49
NY2d 557, 562, 427 NYS2d 595, 404 NE2d 718). Of course,
summary judgment is a drastic remedy and should not be
granted where there is any doubt as to the existence of a
triable issue (State Bank of Albany v McAuliffe, 97 AD2d
607, 467 NYS2d 944), but once a prima facie showing has
been made, the burden shifts to the party opposing the motion
for summary judgment to produce evidentiary proof in
admissible form sufficient to establish material issues of fact
which require a trial of the action (Alvarez v Prospect Hosp.,
68 NY2d 320, 324, 508 NYS2d 923, 501 NE2d 572;
Zuckerman v City of New York, supra, 49 NY2d at 562,
427 NYS2d 595, 404 NE2d 718)".
In applying the foregoing principles of law to the facts of the case at bar, this Court has considered and analyzed all of the record herein as presented to it, wholly within the context of applicable statutory and case law.
Summarizing, the plaintiff avers that it performed work, labor and services for the defendant, pursuant to a written contract, for a three month period. Subsequent to that time, the plaintiff presented the defendant with a twelve month contract, which was not [*4]signed. The plaintiff continued to do work for the defendant, for which the plaintiff was paid, and the plaintiff seeks payment for the time subsequent to when the relationship was severed, where no work was performed.
The plaintiff's complaint has only one cause of action, and that is for breach of contract for the one year period of time. General Obligations Law, §5-701(a) 1 provides:
PAZAAZ COMMUNICATIONS, INC.Index no. 1251/04
"Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking [that] By its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime". There is no dispute that this statute is applicable herein.
The plaintiff asserts that the doctrine of promissory estoppel is applicable to avoid an unconscionable result. The usage of promissory estoppel herein will work only to the disadvantage of the defendant and the advantage of the plaintiff, to force the defendant to pay the plaintiff for work not performed by the plaintiff. This equitable relief will not be utilized herein, as the result would not be equitable. Part performance will not serve to take this contract out of the Statute of Frauds, because there is no proof that the plaintiff was paid pursuant to the proposed contract, only that it was paid under the previous arrangement on an ongoing per diem basis.
The plaintiff's claim, that the series of e-mails are sufficient proof of the ratification of the contract between these parties, is untenable as well. A careful reading of the e-mails, referred to by the plaintiff, evinces a desire by the defendant to live up to an agreement between the defendant and another entity, BCMB.
"There is no reason to delay. Yes
we should cut an order but no
matter what you made a commitment
and we will honor it. He is being
paid or will be paid on a monthly
basis and since he started there is
no reason to refrain from giving
him work". (emphasis supplied).
Accordingly, those e-mails do not constitute sufficient proof to establish that a written [*5]contract was in force (see, Long Island Pen Corp. v Shatsky Metal Stamping Co., Inc., 94 AD2d 788, 463 NYS2d 39, 2nd Dept., 1983).
Therefore, the defendant has demonstrated its entitlement to summary judgment and the plaintiff has not created an issue of fact so as to warrant a trial, and the motion for summary judgment is granted.
This order concludes the within matter assigned to me pursuant to the Uniform Rules for New York State Trial Courts.
So Ordered.
Dated February 1, 2006 XXXJ.S.C.
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