| Kuo v Wall St. Mtge. Bankers, Ltd. |
| 2009 NY Slip Op 06511 [65 AD3d 1089] |
| September 15, 2009 |
| Appellate Division, Second Department |
| Julia Kuo, Respondent, v Wall Street Mortgage Bankers,Ltd., Appellant. |
—[*1] Daniel L. Feldman, Flushing, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendant appeals, aslimited by its brief, from so much of an order of the Supreme Court, Queens County(Rosengarten, J.), entered September 11, 2008, as denied its pre-answer motion to dismiss thecomplaint pursuant to CPLR 3211 (a) (5), as barred by the statute of frauds and the statute oflimitations.
Ordered that the order is affirmed insofar as appealed from, with costs.
We agree with the Supreme Court's determination that the statute of frauds is not a bar to theplaintiff's action, albeit on grounds somewhat different from those stated by the Supreme Court.The plaintiff's claim that she had an oral employment agreement with the defendant is not subjectto the provisions of General Obligations Law § 5-701 (a) (10) (see Caruso v Malang,250 AD2d 800 [1998]; Murphy v CNY Fire Emergency Servs., 225 AD2d 1034,1035 [1996]; Festa v Gilston, 183 AD2d 525 [1992]; Giordano v Thomson, 438F Supp 2d 35 [ED NY 2005]; Freedman v Chemical Constr. Corp., 43 NY2d 260, 266[1977] ["too broad an interpretation (of General Obligations Law § 5-701) would extendthe writing requirement to unintended situations"]; cf. Ostrove v Michaels, 289 AD2d211, 212 [2001]). Since the plaintiff is suing to recover compensation allegedly earned while shewas an employee of the defendant, rather than to recover compensation for services rendered innegotiating or to recover a finder's fee, General Obligations Law § 5-701 (a) (10) isinapplicable.
The Supreme Court also correctly denied that branch of the defendant's motion which was todismiss the complaint as barred by the statute of limitations. "To dismiss a cause of actionpursuant to CPLR 3211 (a) (5) on the ground that it is barred by the Statute of Limitations, adefendant bears the initial burden of establishing prima facie that the time in which to sue hasexpired . . . [i]n order to make a prima facie showing, the defendant must establish,inter alia, when the plaintiff's cause of action accrued. Where, as here, the claim is for thepayment of a sum of money allegedly owed pursuant to a contract, the cause of action accrueswhen the plaintiff 'possesses a legal right to demand payment' " (Swift v New York Med. Coll., 25AD3d 686, 687 [2006], quoting Matter of Prote Contr. Co. v Board of Educ. of City ofN.Y., 198 AD2d 418, 420 [1993] [citations [*2]omitted]; see Cimino v Dembeck, 61 AD3d802 [2009]; Matter of Schwartz,44 AD3d 779 [2007]). The defendant offered no evidence that would support adetermination that the plaintiff had a legal right to demand payment of her compensation, inconnection with the subject loan transaction, prior to the defendant's receipt of the commissionfees from the borrower. Skelos, J.P., Angiolillo, Balkin and Lott, JJ., concur.