Gerry's Foods of Oceanside, Inc. v. Blue Ridge Farms, Inc. , 738 N.Y.S.2d 891 ( 2002 )

—In an action, inter alia, to recover damages for breach of an oral contract, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kangs County (Vaughan, J.), dated March 27, 2001, as granted that branch of the defendants’ motion which was for summary judgment dismissing the first cause of action.

Ordered that the order is reversed insofar as appealed from, with costs, and that branch of the defendants’ motion which was for summary judgment dismissing the first cause of action is denied.

The Supreme Court erred in concluding, as a matter of law, that the doctrine of partial performance was inapplicable to the parties’ alleged oral agreement, which was reduced to writing but not signed. There are issues of fact as to whether the parties’ actions, including the transfer of assets and payment of royalties, constituted partial performance unequivocally referable to the unexecuted sales agreement, thereby removing the agreement from the Statute of Frauds (see, CPLR 3212 [b]; Planet Waste Mgt. v Computer Assoc. Intl., 269 AD2d 376; Whitehorn Assoc. v One Ten Brokerage, 264 AD2d 516; Chaudhry v Abadir, 261 AD2d 498; Sarcona v DeGiaimo, 226 AD2d 1143; Spodek v Riskin, 150 AD2d 358). Krausman, J.P., McGinity, H. Miller and Adams, JJ., concur.