
    Cadin Contracting Corporation, Respondent, v A. D. Herman Construction Co., Inc., Appellant.
    [605 NYS2d 884]
   In an action to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Suffolk County (Copertino, J.), entered April 18, 1991, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

We agree with the Supreme Court that there is a question of fact as to whether the alleged oral contract contained a one-year guarantee against defects in workmanship that rendered the contract incapable of being performed in one year and thus unenforceable under General Obligations Law § 5-701 (see, Halpern v Shafran, 131 AD2d 434). Although the defendant presented unrefuted evidence that the plaintiff had received a copy of the portion of the prime contract that contained the job specifications, there was no evidence that the plaintiff had actual notice of the other provisions of the prime contract, specifically the section of the prime contract that contained its conditions, including the guarantee, and therefore whether that guarantee could have constituted a term of the oral contract.

We have considered the defendant’s remaining contention and find it to be without merit. Thompson, J. P., Rosenblatt, Miller and Ritter, JJ., concur.  