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SUBGAR REALTY CORP. v. GOTHIC LUMBER & MILLWORK, INC.

80 A.D.2d 774 (1981)

Subgar Realty Corp. et al., Respondents, v. Gothic Lumber & Millwork, Inc., et al., Appellants

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

March 10, 1981

Plaintiffs moved to dismiss the counterclaims and affirmative defenses pursuant to CPLR 3211 (subd [a], par 5) on the ground of the Statute of Frauds (General Obligations Law, § 5-703, subd 2). The Statute of Frauds being an affirmative defense, it was incumbent on the movant to show that there was in fact no written contract or "note or memorandum thereof." (General Obligations Law, § 5-703, subd 2.) This fact should have been shown by affidavits from persons having...

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