In Gerard v. Cahill (20 Misc. 3d 1133[A], 872 N.Y.S.2d 690, 2008 NY Slip OP 51716[U], 7 [Sup Ct, Suffolk County 2008]), a case heavily relied upon by Spaulding, the court wrote: "Where a subsequent oral agreement provides terms and/or conditions not covered nor contemplated by the original agreement, acts constituting partial performance of said oral agreement may be considered unequivocally referable to the oral agreement thus rendering it enforceable notwithstanding the inclusion of a 'no oral modification' clause in the original agreement. Where, however, the part performance is explainable with reference to the original agreement or as preparatory steps taken with a view towards consummation of an agreement in the future, such part performance will not be found to be unequivocally referable to an oral modification." The Gerard decision was subsequently affirmed as modified by the Appellate Division, which stated that the oral agreement in question did not modify the original agreement, but created its own, separate, oral agreement "addressing a scenario . . . not covered by the terms of the operating agreement" (66 A.D.3d 957, 959, 888 N.Y.S.2d 104 [2d Dept 2009]).