Summary
finding alleged oral modification of contract enforceable "because it was supported by the consideration of defendant's forbearance in promising to employ plaintiff between 1978 and 1981"
Summary of this case from Granite Partners, L.P. v. Bear, Stearns Co.Opinion
November 7, 1984
Appeal from the Supreme Court, Monroe County, Patlow, J.
Present — Dillon, P.J., Boomer, Green, O'Donnell and Schnepp, JJ.
Order unanimously affirmed, without costs. Memorandum: Special Term properly denied plaintiff's motion for partial summary judgment. There are triable issues concerning the accounts on which plaintiff was entitled to compensation, the rate of commission, the date on which he was terminated, and the terms of an alleged oral modification under which he was employed from 1978-1981.
Defendant was not obligated to plead the oral modification as an affirmative defense. Since plaintiff participated in negotiations regarding it, the defense would be unlikely to take plaintiff by surprise (see CPLR 3018, subd [b]; Rogoff v San Juan Racing Assn., 77 A.D.2d 831, 832, aff'd. 54 N.Y.2d 883; Carlson v Travelers Ins. Co., 35 A.D.2d 351). The alleged modification, if established at trial, is enforceable notwithstanding section 5-1103 of the General Obligations Law because it was supported by the consideration of defendant's forbearance in promising to employ plaintiff between 1978 and 1981 (see Muir v Greene, 191 N.Y. 201; Bisbing v Sterling Precision Corp., 34 A.D.2d 427).