Garcia v. Habacus Constr., Inc. , 2018 NY Slip Op 397 ( 2018 )

Garcia v Habacus Constr., Inc. (2018 NY Slip Op 00397)

Garcia v Habacus Constr., Inc.

2018 NY Slip Op 00397

Decided on January 23, 2018

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 23, 2018
Sweeny, J.P., Richter, Andrias, Webber, Oing, JJ.

5512N 307341/12

[*1] Francisco Garcia, Plaintiff-Respondent,

v

Habacus Construction, Inc., et al., Defendants-Appellants.

Robert L. Dougherty, Garden City, for appellants.

Kevin J. Abruzzese, Garden City, for respondent.

Order, Supreme Court, Bronx County (Ruben Franco, J.), entered October 6, 2016, which, to the extent appealed from, denied defendant Habacus Construction, Inc. (Habacus) summary judgment dismissing the breach of contract cause of action, and denied the branch of defendants' motion seeking sanctions and costs, unanimously affirmed, without costs.

The motion court correctly ruled that the alleged oral agreement between plaintiff and Habacus for a share of the company's profits during the duration of plaintiff's employment did not violate the statute of frauds. Plaintiff testified that the profit-sharing agreement was for the duration of his employment, which was at will and thus could have been terminated within one year of his hiring (see Cron v Hargro Fabrics , 91 NY2d 362, 366 [1998]). In addition, issues of fact exist concerning the nature of plaintiff's employment agreement with defendants.

The motion court providently exercised its discretion in denying defendants' motion for sanctions and costs (see 22 NYCRR 130-1.1).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 23, 2018

CLERK