Osborne v. Murray

Order, Supreme Court, New York County (Carol Arber, J.), entered February 26, 1997, which, to the extent appealed from, granted defendants’ motion for partial summary judgment dismissing the fourth, fifth and sixth causes of action on the ground of the Statute of Frauds, and denied plaintiff’s motion for summary judgment on his third, sixth and ninth causes of action, unanimously affirmed, without costs.

Defendants’ failure to plead the Statute of Frauds as an affirmative defense did not bar summary dismissal in these circumstances (see, Rogoff v San Juan Racing Assn., 54 NY2d 883). The checks…