STATUTE OF FRAUDS FORMS BASIS FOR DISMISSAL OF SUMMONS AND COMPLAINT

February 2017

During a contentious round of oral argument before the Honorable Edgar G. Walker, Sobel Pevzner, LLC, attorneys  for Rite Aid, prevailed in moving the court to dismiss Plaintiff’s Summons and Complaint. This action involved 18 named defendants, wherein the plaintiff alleged the negligence of each party caused her eventual injury that resulted after a trip and fall on a nearby sidewalk. The main issue in this matter revolved around who owned the property and which entity was responsible for the maintenance of the subject sidewalk.

In defendant’s motion papers and during oral arguments a signed lease agreement and a renewal thereof between Rite Aid and the property’s landlord, which outlined the landlord’s responsibility for the maintenance as well as the completion of any necessary repairs to the subject sidewalk. In opposition, the attorneys representing the various co-defendants attempted to rebut this argument by way of deposition testimony from two separate landlords, all of which failed to identify the contract at issue. Further, plaintiff’s attorney attempted to oppose Rite Aid’s motion by arguing discovery was incomplete as a deposition of a Rite Aid representative had yet to be conducted. However, a properly executed affidavit on behalf of Rite Aid was submitted

Maintaining the defendants position of no liability on behalf of Rite Aid, Sobel Pevzner, LLC cited to NY UCC § 2-201, which outlines the Statute of Frauds. The pertinent parts of this argument recited the well-settled law, which provides that any contract whose performance cannot be completed within one year must be in the form of a signed writing, and cannot be modified, altered, or amended by oral agreements. Judge Walker agreed with the defendant’s argument and further noted that deposing a Rite Aid representative would be moot as any testimony in regard to an oral modification of the lease agreement would be invalid pursuant to the Statute of Frauds.