New York Court of Appeals, 1978

Shirley Polykoff Advertising, Inc. v. Houbigant, Inc.

New York Court of Appeals · Decided February 16, 1978

43 N.Y.2d 921; 374 N.E.2d 625; 403 N.Y.S.2d 732; 1978 N.Y. LEXIS 1828

Cases that cite this one

26 later published cases cite this decision. The 24 that cite it most often are listed here.

Rudinsky v. Harris (Ariz. Ct. App. 2012)
South Cherry Street, LLC v. Hennessee Group LLC (2d Cir. 2009)
Holloway v. King (District Court, S.D. New York 2005)
Foros Advisors LLC v. Digital Globe, Inc. (District Court, S.D. Illinois 2018)
Erhlich v. Diggs (District Court, E.D. New York 2001)
Argonaut Insurance Companies v. Medical Liability Mutual Insurance (District Court, S.D. New York 1991)
William H. Burke, Cross-Appellant v. Gus Bevona, as President of Local 32b-32j, Service Employees International Union, Afl-Cio, Cross-Appellee (2d Cir. 1989)
Richard M. Rosenthal v. Jane Fonda (9th Cir. 1988)
Koret, Inc. v. RJR Nabisco, Inc. (District Court, S.D. New York 1988)
Brignoli v. Balch Hardy and Scheinman, Inc. (District Court, S.D. New York 1986)
Nancy Ebker, Cross-Appellee v. Tan Jay International, Ltd. And Peter J. Nygard, Tan Jay International, Ltd., Cross-Appellant (2d Cir. 1984)
Klock v. Lehman Brothers Kuhn Loeb Inc. (District Court, S.D. New York 1984)
Nifty Foods Corporation v. The Great Atlantic & Pacific Tea Company, Inc. And Pet Incorporated (2d Cir. 1980)
Greybark Advertising, Inc. v. Amba Marketing Systems, Inc. (District Court, S.D. New York 1979)
Cron v. Hargro Fabrics, Inc. (N.Y. 1998)
Bennett v. Atomic Products Corp. (Appellate Division of the Supreme Court of New York 2010)
Aquavella v. Viola (Appellate Division of the Supreme Court of New York 2010)
Berkun v. Validation Review Associates, Inc. (Appellate Division of the Supreme Court of New York 1999)
McCoy v. Edison Price, Inc. (Appellate Division of the Supreme Court of New York 1992)
Asciutto v. Barco Auto Leasing Corp. (Appellate Division of the Supreme Court of New York 1986)
Tip Top Farms, Inc. v. Dairylea Cooperative, Inc. (Appellate Division of the Supreme Court of New York 1985)
D & N Boening, Inc. v. Kirsch Beverages, Inc. (N.Y. 1984)
D & N Boening, Inc. v. Kirsch Beverages, Inc. (Appellate Division of the Supreme Court of New York 1984)
Sonders v. Roosevelt (Appellate Division of the Supreme Court of New York 1984)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

OPINION OF THE COURT

Memorandum.

The order appealed from should be reversed, defendant’s cross motion granted, summary judgment entered in favor of defendant, and the certified question answered in the negative. The issue presented on this appeal is whether the alleged oral contract is within the Statute of Frauds in that "[b]y its terms [it] is not to be performed within one year from the making thereof’ (General Obligations Law, § 5-701, subd a, par 1). We hold that it is.

*922Plaintiff designed an advertisement for defendant, and has been paid some $42,500. In addition, plaintiff alleges an "understanding” that defendant would pay plaintiff $5,000 a year for every year in which defendant uses the advertisement. Since this alleged oral agreement is not evidenced by any writings, it is void if it comes within the Statute of Frauds.

This contract is not one which by its terms can be performed within a year. If it were, it would be without the statute even if, as a practical matter, it were well nigh impossible of performance within a year (see Freedman v Chemical Constr. Co., 43 NY2d 260). Nor is it a contract involving alternative performances, one of which is fully performable within a year (see Coinmach Inds. Corp. v Domnitch, 37 NY2d 889). Finally, this agreement is not similar to that discussed in North Shore Bottling Co. v Schmidt & Sons (22 NY2d 171), for the court found the contract involved in that case to be susceptible of termination by the defendant within a year without breach of the contract. In this case, defendant has allegedly promised plaintiff, as a part of the consideration for designing the advertisement, that defendant will pay plaintiff an additional fee for every year in which the advertisement is used. Defendant is not obliged to use the advertisement, and can incur no liability for not using it. Defendant’s failure to use the advertisement for any period of time, however long, does not, of course, terminate the contract. Clearly, defendant could not have terminated his contractual obligations by simply waiting a year before using it. Similarly, defendant could not terminate the contract by temporarily suspending use of the advertisement for a year. In fact, it would appear that there is no way in which defendant could unilaterally terminate the contract. Thus, the contract cannot by its own terms be performed within a year, and is within the Statute of Frauds.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order reversed, with costs, and defendant’s cross motion for summary judgment granted in a memorandum. Question certified answered in the negative.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.