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A 10-day, $24,000 catered Passover country-club retreat is more of a “service” than “goods” and therefore not subject to the statute of frauds, a judge has ruled. Because the retreat is not subject to the statute, a Brooklyn man who allegedly booked the getaway could be made to pay the bill even though he never signed a contract, Judge Jack M. Battaglia of Manhattan Civil Court ruled in Fallsview Glatt Kosher Caterers v. Rosenfeld, 92554/04. Battaglia denied a defense motion to dismiss and will allow the dispute to go to trial, despite the lack of a written agreement. The defendant, Willie Rosenfeld, contacted The Glatt Boys, a catering business run by the plaintiff, Fallsview Glatt Kosher Caterers Inc., in early 2004. Rosenfeld and The Glatt Boys agree that he was interested in finding a place for 15 members of his extended family to spend Passover. “There’s a whole industry of going away for Passover,” Rosenfeld’s attorney and son-in-law, Stuart Blander, said in an interview. “It’s become increasingly popular in the last 15 to 20 years.” Passover hot spots include Arizona, Florida, Puerto Rico and the Catskills, home to the Kutsher Country Club, where The Glatt Boys hold retreats. The Glatt Boys contend that on or about March 7, 2004, Rosenfeld orally agreed to pay $24,050 for his family to attend a program in which the caterers would provide accommodations, food and entertainment at the Kutsher Country Club in Monticello, N.Y., according to the complaint. Rosenfeld contends that no such agreement ever took place. He and his family did not show up at Kutsher’s over Passover. The Glatt Boys filed the complaint in September 2004, seeking the $24,050 plus interest, expenses and attorney’s fees. Rosenfeld averred that not only did he never enter into an agreement, but also that the absence of a written contract precluded a claim under the Universal Commercial Code’s statute of frauds. WRITTEN CONTRACT UCC �2-201 states that “a contract for the sale of goods for the price of $500 or more is not enforceable … unless there is some writing sufficient to indicate that a contract for sale has been made.” The retreat comprised goods and not a service — which would not require a written contract — because Passover revolves around food, not service, he argued. The “very essence of the ‘experience’ is the presentation and enjoyment of abundant, frequent and high quality Kosher for Passover cuisine,” his attorney, Blander, a member of Manhattan’s Heller, Horowitz & Feit, wrote in the motion to dismiss. Battaglia focused on whether the statute of frauds requires a written contract for an agreement that required both services and goods to be provided. “Presented with a ‘hybrid sales-service contract,’” the judge wrote, “the court must decide whether to apply the law applicable to sale of goods, currently Article 2 of the Uniform Commercial Code as adopted in this state, or to apply the law applicable to service contracts, the general law of contracts or some specialized portion thereof.” Battaglia relied on “predominant purpose” analysis to determine whether the statute of frauds applied, citing Perlmutter v. Beth David Hospital, 308 NY 100 and Temple v. Keeler, 238 NY 344. The defense argued that the predominant purpose of the alleged agreement was the provision of food. “The essential religious obligation during this eight day period — and the principal reason why people attend events similar to the Program sponsored by plaintiff — is in order to facilitate their fulfillment of the requirement to eat only food which is prepared in strict accordance with the mandate of Jewish law for Passover,” Blander wrote in an affidavit in support of his motion. An affidavit submitted by an officer of the catering company contended that the predominant purpose of the retreat revolved around the services provided, not the food. The submission included a list of activities in which the guests could participate while not eating. “The activities possible include tennis, racquetball, swimming, Swedish massage, ‘make over face lift show,’ ‘trivia time,’ aerobics, bingo, ice skating, dancing, ‘showtime,’ ‘power walk,’ arts and crafts, day camp, ping-pong, Yiddish theater, board games, horse racing, horseback riding, wine tasting, and indoor baci — and that is only through Wednesday,” the judge wrote. SERVICES THE ESSENCE A “review of the characteristics of the ‘program,’ which is the subject matter of the alleged agreement, leads the Court to conclude that the ‘essence’ of the family communal ‘experience’ is defined by ‘services’ and not by ‘goods,’” he concluded. The statute of frauds therefore did not apply, and a written contract was therefore not required, Battaglia held, denying the motion to dismiss. “I thought it was a well thought-out decision,” said Sheldon Eisenberger, the principal of the Law Office of Sheldon Eisenberger, who represented the catering company with his associate Elliot Hahn. “I was very happy with the analysis.” Blander, called it a “scholarly opinion,” though he said he felt it was ripe for appeal. “One thing everyone can agree about is that it’s a novel issue of law,” he said. “I don’t think anyone has ever thought of this before.”

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