DA LAW, DA LAW! . . .

Sometimes, in my line of work, we find ourselves spending hours, days, nights, long moments in the shower letting the hot water dribble down our bodies as we stare aimlessly at the opposite wall, thinking about ... the law.

As I mentioned earlier, I am working on a Statute of Frauds issue. Or I was. Eh, don't ask. It bites. I have spent the last three weeks trying to wrap the synapses in my simple little lump of gray matter around this seemingly very easy issue. And of course, as often happens in this industry, right as I understand the issue, right as I understand the law, right as I understand how to apply it ... I discover that I never needed it in the first place.

Now I have all this language, all this law, all this research, sitting in the middle of my document, and it serves no purpose whatsoever. That bugs the bejesus out of me. The fruit of my labors, the sweat of my fingertips, the damn law that has kept me up nights and made cameo appearances in my dreams ... for nothing, you say? NAY! Never say for nothing!

Drumroll please ... I present to you now ... THE NEW YORK STATUTE OF FRAUDS.

Under the New York Statute of Frauds,

Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged ... if such agreement, promise or undertaking ... [b]y its terms is not to be performed within one year from the making thereof ....

N.Y. Gen. Obl. Law § 5-701(a)(1) (McKinney 1989). An agreement is not void under this provision of the Statute "unless there is not ... the slightest possibility that it can be fully performed within one year." Ohanian v. Avis Rent a Car System, Inc., 779 F.2d 101, 106 (2d Cir. 1985); see also Riley v. N.F.S. Services, Inc., 891 F. Supp. 972, 975 (S.D.N.Y. 1995). "The critical test ... is whether 'by its terms' the agreement is not to be performed within a year." Freedman v. Chemical Constr. Corp., 43 N.Y.2d 260, 265 (1977); see also Klagsbrun v. Ross, 1995 WL 43664, at *4 (S.D.N.Y. Feb. 3, 1995). In the absence of a written agreement setting forth all of its terms, the Statute of Frauds "voids an agreement which by its terms cannot be performed within one year." R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984); see also Jabara v. Songs of Manhattan Island Music Co., 1989 WL 16614, at *12 (S.D.N.Y. Feb. 24, 1989); City of Yonkers v. Otis Elevator Co., 649 F. Supp. 716, 726-27 (S.D.N.Y. 1986). In addition, "it is equally clear that the Statute of Frauds forbids the imposition of a performance obligation on a [party] necessarily extending beyond one year, in the absence of a writing(s) which sets forth all of the essential terms of the agreement imposing that performance obligation." City of Yonkers, 649 F. Supp. at 727. Thus, the Statute applies where "no provision of the agreement alleged permits the [party] to discharge that performance obligation in less than a year." Id.

However, even if a contract cannot be performed within one year, partial performance may render the contract enforceable if that partial performance is "unequivocally referable to that agreement." Romano v. MTI/The Image Group, Inc., 2003 WL 22203735, at *3 (S.D.N.Y. Sept. 22, 2003).