Mirra v. Patterson 57 A.D.3d 630, 868 NYS2d 549

The defendants established their prima facie entitlement to *631judgment as a matter of law by showing that the alleged oral agreement was unenforceable under the statute of frauds because it was not subscribed in writing by the defendant Paul Patterson and was not capable of being performed within one year (see General Obligations Law § 5-701 [a] [1]; Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]; Stillman v Kalikow, 22 AD3d 660, 662 [2005]). In opposition, the plaintiff, by his affidavit, raised a triable issue of fact as to whether the statute of frauds barred the action, asserting, in effect, that “although the agreement was capable of an indefinite continuance, the agreement could have been fully performed within a year of the making thereof’ (Radnay v Charge & Ride, 266 AD2d 194, 196 [1999]; see Cron v Hargro Fabrics, 91 NY2d at 366; Stillman v Kalikow, 22 AD3d at 662; Zuccarini v Ziff-Davis Media, 306 AD2d 404, 405 [2003]). Rivera, J.P, Dillon, Covello and McCarthy, JJ., concur.