HARLAN KOSSON, M.D., APPELLANT, v. JOSHUA "ALGAZE", ET AL. RESPONDENTS.
84 N.Y.2d 1019, 646 N.E.2d 1101, 622 N.Y.S.2d 674 (1995).
January 17, 1995
1 No. 118 SSM 40 (1995 NY Int. 010)
Decided January 17, 1995
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Submitted by Ravi Batra, for Appellant.
Submitted by Edward S. Kornreich, for Respondents.
MEMORANDUM:
The order of the Appellate Division should be affirmed with costs.
In order to defeat defendants' motion for summary judgment, plaintiff
had the burden of showing "facts sufficient to require a trial of any
issue of fact" (Zuckerman v City of New York, 49 NY2d 557, 563; CPLR
3212, subd (b)). As applied here, plaintiff had to submit evidentiary
facts that he was employed by defendant St. Luke's/Roosevelt Hospital
Center for a fixed duration pursuant to a definite written contract of
employment. In his complaint, plaintiff did not allege the existence
of a written contract of employment and in a supplemental affidavit he
submitted before any responsive pleading, plaintiff only referred to
certain noncontractual documents as "confirm(ing) part of the
contract" between him and the hospital. The documents referred to were
clearly insufficient to satisfy the Statute of Frauds. Only after
defendants interposed defenses based in part upon the Statute of
Frauds did plaintiff aver the existence of a written contract, his
copy of which allegedly had been lost. This averment was made in
conclusory fashion and was inconsistent with plaintiff's previous
reliance on confirmatory noncontractual documents to establish his
agreement. Thus, the Appellate Division correctly found that plaintiff
had failed to meet the burden of making a sufficient factual showing.
* * * * * * * * * * * * * * * * *
On review of submissions pursuant to section 500.4 of the Rules,
order affirmed, with costs, in a memorandum. Judges Simons, Titone,
Bellacosa, Smith, Levine and Ciparick concur. Chief Judge Kaye took no
part.
SNIPPETS:
This memorandum is uncorrected and subject to revision before publication in the New York
Submitted by Ravi Batra, for Appellant.
for Respondents.
In order to defeat defendants' motion for summary judgment, plaintiff had the burden of
plaintiff had to submit evidentiary facts that he was employed by defendant St.
In his complaint, plaintiff did not allege the existence of a written contract of employment
Only after defendants interposed defenses based in part upon the Statute of Frauds did
This averment was made in conclusory fashion and was inconsistent with plaintiff's previous
the Appellate Division correctly found that plaintiff had failed to meet the burden of making
On review of submissions pursuant to section 500.4 of the Rules, order affirmed, with costs,
Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.
Chief Judge Kaye took no part.
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