SUSAN LAX plf-ap, v. DESIGN QUEST N.Y. LTD. def-res

8715. SUSAN LAX plf-ap, v. DESIGN QUEST N.Y. LTD. def-res — Law Office of Jack M. Platt, New York (Neal R. Platt of counsel), for ap — Alonso, Andalkar, Small, Toro & Facher, P.C., New York (Joan Toro of counsel), for res — Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered January 25, 2012, which granted defendants' motion to dismiss the complaint, unanimously modified, on the law, to reinstate the claim for breach of contract and allow plaintiffs to replead the fraud claim insofar as it is based on the allegations of fraudulent billing, and otherwise affirmed, without costs.

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8715. SUSAN LAX plf-ap, v. DESIGN QUEST N.Y. LTD. def-res — Law Office of Jack M. Platt, New York (Neal R. Platt of counsel), for ap — Alonso, Andalkar, Small, Toro & Facher, P.C., New York (Joan Toro of counsel), for res — Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered January 25, 2012, which granted defendants’ motion to dismiss the complaint, unanimously modified, on the law, to reinstate the claim for breach of contract and allow plaintiffs to replead the fraud claim insofar as it is based on the allegations of fraudulent billing, and otherwise affirmed, without costs.

Given that plaintiffs’ alleged oral contract was formed after execution of the parties’ written agreement, it did not fall within the parol evidence rule (see Marine Midland Bank-S. v. Thurlow, 53 NY2d 381, 387 [1981]). Nor was it barred as an oral modification to the parties’ contract, as that contract contained no clause prohibiting oral modification (see General Obligations Law §15-301). Nor was dismissal supported by the documentary evidence. Defendants produced a work permit submitted by one “DL Restoration” indicating it was doing renovation work at plaintiffs’ premises. However, even if DL Restoration was performing that work, it does not dispositively preclude that they also performed the additional construction and renovation work at issue (see United States Trust Co. of N.Y. v. Gill & Duffus, 189 AD2d 655 [1st Dept 1993]).

SUSAN LAX plf-ap, v. DESIGN QUEST N.Y. LTD. def-res

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