Bisbing v. Sterling Precision Corp.

Reynolds, J.

(dissenting). I cannot agree that there exist triable issues requiring a plenary trial and would thus affirm Special Term’s granting of summary judgment in favor of the respondents.

Concededly, respondents undertook to provide insurance coverage for the appellants. However, it is also manifest that all memoranda, brochures, letters or other written communications concerning the status of the group insurance plan and policies, while expressing the hope that the plan agreed upon would continue indefinitely, specifically noted that the right is reserved to change or terminate the plan at any time in the future ”. Thus, under the terms of the writings produced, appellants have no cause of action for the April 1, 1967 reduction in coverage. The majority notes this, but, nevertheless, finds a triable issue as to the existence of an oral agreement to provide coverage without a reservation permitting alteration or termination by the respondents. But since here the asserted obligation to pay the life insurance premiums continued until the instant of death, the Statute of Frauds (General Obligations Law, § 5-701, subd. 1) is clearly applicable to this alleged oral agreement in that in no event can performance be completed within a year or before the end of a lifetime (Friedman v. Markman, 11 A D 2d 57, 62; Rubenstein v. Kleven, 261 F. 2d 921). And there are no acceptable reasons advanced to remove the alleged oral agreement from the Statute of Frauds. Any claim of part performance by the appellants is not availing. Except for agreements relative to the sale of real property or contracts for sale of goods which are governed by the terms of section 2-201 of the Uniform Commercial Code, full performance by both parties is necessary to take an agreement out of the 'Statute of Frauds (Wahl v. Barnum, 116 N. Y. 87; Rosen v. Greenfield Co., 25 A D 2d 802; Bayreuther v. Reinisch, 264 App. Div. 138, 141, affd. 290 N. Y. 553). Even where part performance is sufficient, it must be unequivocally referable to the alleged agreement (Wilson v. Le Van, 22 N Y 2d 131; Burnside & Co. v. Havener Securities Corp., 25 A D 2d 373) and appellants’ claimed performance — continuing to work for the respondents — is not unequivocally referable to an agreement to provide continuous insurance coverage for *432them. Nor can I agree with the majority’s assertion that the doctrine of estoppel might preclude respondents from asserting the Statute of Frauds as a defense. Absent fraud, intentional misrepresentation, unjust enrichment or other special circumstances, which are not present here, respondents are not estopped from invoking the Statute of Frauds (Scheuer v. Scheuer, 308 N. Y. 447, 452; Awad & Co. v. Pillsbury Mills, 9 A D 2d 870; Goldberg v. Colonial Life Ins. Co. of Amer. 284 App. Div. 678, app. dsmd. 308 N. Y. 958; Newkirk v. Bradley & Son, 271 App. Div. 658). Under the facts in this case to permit the use of estoppel would leave little left of the statute (Connell v. Slater, 137 Misc. 249).

Accordingly, I vote to affirm.

Herlihy, P. J., and Staley, Jr., J., concur with Sweeney, J.; Reynolds J., dissents and votes to affirm, in opinion in which G-reenblott, J., concurs.

Order reversed, on the law, and motion for summary judgment denied, without costs.