Jerry Miller Associates, Inc., Respondent, v. Robert A. Ganger et al., Appellants

Jerry Miller Associates, Inc., Respondent, v Robert A. Ganger et al., Appellants. [607 NYS2d 131] [MAJORITY] In an action, inter alia, to recover damages for unfair competition, the defendants appeal from an order of the Supreme Court, Nassau County (Saladino, J.), dated November 20, 1991, which granted the plaintiff’s motion for partial summary judgment dismissing their second, third, and fourth counterclaims. Ordered that the order is reversed, on the law, with costs, the motion for partial summary judgment is denied, and the second, third, and fourth counterclaims are reinstated. We conclude that the alleged oral agreement which involved the exchange of the defendant Robert Ganger’s services for commissions equal to a percentage of the profits of the plaintiff corporation did not confer on Ganger an equity participation in the corporation. Therefore, the defendants’ second, third, and fourth counterclaims are not barred by the Statute of Frauds set forth in UCC 8-319 (cf., Newman v Crazy Eddie, 119 AD2d 738). Thompson, J. P., Rosenblatt, Ritter, Friedmann and Krausman, JJ., concur.