OSBORNE v. MURRAY

Defendants' failure to plead the Statute of Frauds as an affirmative defense did not bar summary dismissal in these circumstances ( see, Rogoff v. San Juan Racing Assn., 54 N.Y.2d 883). The checks that plaintiff asserts as a written memorandum do not contain all the essential terms of the agreement ( see, McDaniel v Sangenino, 67 A.D.2d 698, 699). The payments are not unintelligible or extraordinary without reference to the alleged oral agreement ( see, Arden Communications v. Abbate, 220 A.D.2d 237), and do not correspond precisely to the obligation imposed by the alleged oral contract ( see, Thallon Co. v. Edsil Trading Corp., 302 N.Y. 390). As for plaintiff's claims sounding in account stated, there is a question of fact as to whether defendants held plaintiff's bills for an unreasonable period of time without objection ( see, A J Produce Corp. v. De Palo Indus., 215 A.D.2d 317). We have considered plaintiff's remaining arguments and find them to be without merit.

Concur — Murphy, P.J., Wallach, Rubin, Tom and Andrias, JJ.