Practice point: Where the written agreement does not cover the dispute, plaintiff may present evidence to prove an alleged oral agreement, as such proof would not contradict or modify the terms.
Practitioners should note that where the written agreement does not cover the dispute, or there is a question about the existence of a contract, plaintiff may proceed on a theory of quasi-contract as well as breach of contract, and will not be required to elect a remedy.
Case: Elbroji v. 22 E. 54th St. Rest. Corp., NY Slip Op 08779 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Labor Law.
