Winston American Transportation, Inc., Respondent, v. Motorola Communications and Electronics, Appellant

Winston American Transportation, Inc., Respondent, v Motorola Communications and Electronics, Appellant. [645 NYS2d 185] [MAJORITY] —Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly denied that part of defendant’s motion for summary judgment dismissing that part of the complaint alleging that defendant breached its oral promise, made in 1985, to prepare and process any FCC license applications and renewals for plaintiff that were necessary to broadcast operations on exclusive frequencies. The complaint alleges that defendant made that promise to induce plaintiff to purchase car radios, crystals and related equipment. Contrary to defendant’s contention, the Statute of Frauds does not apply. Because a sale of goods was the predominant feature of the alleged transaction (see, Rielly Co. v Lisa B. Inc., 181 AD2d 269, 272; Word Mgt. Corp. v AT&T Information Sys., 135 AD2d 317, 321), plaintiff’s receipt and acceptance of the radios and related equipment eliminates the requirement of a writing (see, UCC 2-201 [3] [c]; L. Fatato, Inc. v Decrescente Distrib. Co., 86 AD2d 600; see generally, 2 Anderson, Uniform Commercial Code § 2-201:175 [3d ed]), and parol evidence is admissible to establish the terms of the oral agreement (see, id., § 2-201:162). The court erred, however, in denying that part of defendant’s motion for summary judgment dismissing that part of the complaint seeking damages for the breach of a similar oral promise allegedly made in 1973 and for fraud. The alleged 1973 promise was not made to plaintiff, which was not incorporated until 1978. Further, plaintiff disproved its own allegation that defendant made a false representation with intent to deceive. Plaintiff submitted evidence that defendant "forgot” to renew the licenses and that, upon realizing its error, defendant assisted plaintiff in the unsuccessful submission of a license application, thereby disproving the allegation that the alleged promise was made with intent to deceive. (Appeal from Order of Supreme Court, Suffolk County, D’Emilio, J.— Summary Judgment.) Present—Pine, J. P., Fallon, Callahan, Balio and Boehm, JJ.