MERIT OIL HEATING CORP. v. SOMLO


71 A.D.2d 602 (1979)

Merit Oil Heating Corp., Respondent, v. Joseph H. Somlo, Appellant, et al., Defendant

Appellate Division of the Supreme Court of the State of New York, Second Department.

July 2, 1979


Judgment affirmed, with costs.

No opinion.

Lazer, J., concurs in the result with the following memorandum:

I concur because defendant Somlo (1) failed to plead the Statute of Frauds despite the fact that he had ample notice from the bill of particulars that plaintiff intended to rely on an oral agreement; (2) never moved to amend the answer to assert the Statute of Frauds and simply moved to dismiss on the basis of the statute after the...

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