Freedman v. Chemical Construction

New York Court of Appeals · Contracts

ContractsStatute of Fraudsoral agreementStatute of Fraudssummary judgmentchoice of lawone-year provisionbusiness opportunity

Facts

Plaintiff alleged that defendant orally agreed to pay him a 5% fee if defendant obtained and completed a contract to build a chemical plant in Saudi Arabia. Plaintiff claimed he helped interest defendant in the project and, with a Syrian associate, helped arrange contacts with Saudi officials that ultimately led to defendant's receiving the contract. There was no writing evidencing the alleged fee agreement. In opposing summary judgment, plaintiff asserted generally that the parties agreed Saudi law would govern, but he offered no evidentiary facts supporting that assertion.

Issue

Whether plaintiff's unsupported assertion that the parties intended Saudi law to govern created a triable issue defeating summary judgment, and, if New York law applied, whether the alleged oral fee agreement was unenforceable under General Obligations Law § 5-701. More specifically, the court considered whether the agreement was one not performable within one year under subdivision 1 and whether plaintiff's intermediary services constituted negotiating a business opportunity under subdivision 10.

Rule

A party opposing summary judgment must present evidentiary facts sufficient to raise a triable issue; conclusory assertions are insufficient. Under General Obligations Law § 5-701(1), an oral agreement is unenforceable only if, by its terms, it is not to be performed within one year, and mere improbability of performance within a year does not suffice. Under § 5-701(10), a writing is required for a contract to pay compensation for intermediary services in negotiating a business opportunity, and negotiating includes procuring an introduction or assisting in the negotiation or consummation of the transaction.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Nina Solis sued Harbor Crest Engineering in New York County, claiming the company orally promised her a 4% success fee if it won a desalination project in Oman. Harbor Crest moved for summary judgment under New York's Statute of Frauds, and Nina responded only with an affidavit stating that the parties 'understood Omani law would apply,' without attaching emails, contract drafts, or testimony showing any such agreement.

How should the court most likely rule on the choice-of-law issue for purposes of the summary judgment motion?

Explanation. A party opposing a properly supported summary judgment motion must present evidentiary facts sufficient to raise a triable issue. A bare assertion that the parties intended foreign law to govern is not enough. Under the majority's reasoning, the court would not treat the unsupported choice-of-law claim as defeating summary judgment.