writing requirement in New York

2016The reason for this concern is that “[t]oo broad an interpretation would extend the writing requirement” to situations beyond those intended by the legislature (Freedman, 43 NY2d at 266 ).

2009Corp., 43 NY2d 260, 266 [1977] [“too broad an interpretation (of General Obligations Law § 5-701) would extend the writing requirement to unintended situations”]; cf. Ostrove v Michaels, 289 AD2d 211, 212 [2001]).

2009While the statute of frauds requires a writing with respect to contracts “to pay compensation for services rendered in . . . creating ... a partnership interest” (General Obligations Law § 5-701 [a] [10]), it has been held that “an oral joint venture agreement that involves interests in real property . . . does not run afoul of the writing requirement because the underlying interest in the joint venture is properly considered personalty” (Hydro Invs. v Trafalgar Power, 6 AD3d 882, 885 [2004]; see Barash v Estate of Sperlin, 271 AD2d 558, 559 [2000]).

2004Further, an oral joint venture agreement that involves interests in real property, such as the one alleged here, does not run afoul of the writing requirement because the underlying interest in the joint venture is properly considered personalty (see Barash v Estate of Sperlin, 271 AD2d 558, 559 [2000]; Walsh v Rechler, 151 AD2d 473, 473 [1989]).

1997Assuming that the condition was not fully performed, plaintiff’s conduct in sending the leases to defendant for his review constitutes at least partial performance "unequivocally referable” to the claimed modification so as to avoid the writing requirement (see, id., at 343).

1980We do not agree that the writing requirement is avoided because there has been partial performance which is unequivocally referable to the oral modification (see Rose v Spa Realty Assoc., supra, pp 343-344).

1984(General Obligations Law, § 5-701, subd a, par 1; see Polykoff Adv. v Houbigant, Inc., 43 NY2d 921 .)

1984(See, e.g., Polykoff Adv. v Houbigant, Inc., 43 NY2d 921 .) Prominent among these latter agreements falling within the Statute are those which are terminable within one year only upon a breach by one of the parties.

2017(Compare Konvalin v Tan Hai Ying, 13 Misc 3d 287, 290 [Sup Ct, Queens County 2006] [praising the lawyer for “outstanding adherence to legal ethics”], with Moray v Koven & Krause, Esqs., 15 NY3d 384, 386 [2010] [identifying lawyer involved in legal malpractice].) Although the court in Konvalin was well-intentioned in making a selection outside the part 36 list and complied with the writing requirement in choosing an individual not on the list, with the benefit of 20/20 hindsight, sticking to the part 36 would have spared that highly regarded jurist and the participants a lot of embarrassment, t

2017(Compare Konvalin v Tan Hai Ying, 13 Misc 3d 287, 290 [Sup Ct, Queens County 2006] [praising the lawyer for “outstanding adherence to legal ethics”], with Moray v Koven & Krause, Esqs., 15 NY3d 384, 386 [2010] [identifying lawyer involved in legal malpractice].) Although the court in Konvalin was well-intentioned in making a selection outside the part 36 list and complied with the writing requirement in choosing an individual not on the list, with the benefit of 20/20 hindsight, sticking to the part 36 would have spared that highly regarded jurist and the participants a lot of embarrassment, t

2013Co., 60 AD3d 1037 [2d Dept 2009]; Lewin Chevrolet-Geo-Oldsmobile v Bender, 225 AD2d 916 [3d Dept 1996]). 2 However, defendant failed to meet his burden of showing lack of consideration (Carlin v Jemal, 68 AD3d 655, 656 [1st Dept 2009] [“Since plaintiff met his initial burden of demonstrating entitlement to recovery on the note by submitting proof of the note and defendants’ default thereon, and defendants have not challenged the authenticity of their signatures on the note, the burden then shifted to defendants to demonstrate lack of consideration as a defense”]).

2010Cf. MP Innovations, Inc. v Atlantic Horizon Intl., Inc., 72 AD3d 571, 572 (2010) (e-mail did not satisfy the statute of frauds because it failed to “identify a number of material terms” of the alleged agreement); Page v Muze, Inc., 270 AD2d 401, 401 (2000) (e-mail did not satisfy the statute of frauds where it “made only an equivocal reference” to the right claimed by plaintiff and “was not shown to have satisfied the subscription requirement”). .

2010Corp., 205 AD2d 388, 390 [1994] [holding in the alternative that “documentary evidence in defendant’s own files, including . . . computer records,” satisfied the writing requirement of General Obligations Law § 5-1105]). .

2010Defendant relies on General Obligations Law § 5-703 (3), which provides: “A contract to devise real property or establish a trust of real property, or any interest therein or right with reference thereto, is void unless the contract or some note or memorandum thereof is in writing and subscribed by the party to be charged therewith, or by his lawfully authorized agent.” However, there is authority treating General Obligations Law § 5-703 (2) as the provision applicable to a contract creating a right of first refusal as to real property (see Pfeil v Cappiello, 29 AD3d 1187, 1188 [2006]).

2010Cf. MP Innovations, Inc. v Atlantic Horizon Intl., Inc., 72 AD3d 571, 572 (2010) (e-mail did not satisfy the statute of frauds because it failed to “identify a number of material terms” of the alleged agreement); Page v Muze, Inc., 270 AD2d 401, 401 (2000) (e-mail did not satisfy the statute of frauds where it “made only an equivocal reference” to the right claimed by plaintiff and “was not shown to have satisfied the subscription requirement”). .

2009Co., 9 Misc 3d 450, 452 [Sup Ct, NY County 2005] [“Courts have labored inconclusively in deciding whether cooperative apartment ownership is an interest in real or personal property”]; accord In re Lefrak, 227 BR 222, 228 [SD NY 1998] [“cooperative apartment ownership is sui gene ris”], affg 215 BR 930, 934 [SD NY 1998].) Especially apt to this decision is the Appellate Division, Second Department’s opinion in Moloney v Weingarten ( 118 AD2d 836 [1986], lv denied 69 NY2d 608 [1987]), holding that contracts concerning co-op apartments must satisfy the statute of frauds (General Obligations Law

2009Co., 9 Misc 3d 450, 452 [Sup Ct, NY County 2005] [“Courts have labored inconclusively in deciding whether cooperative apartment ownership is an interest in real or personal property”]; accord In re Lefrak, 227 BR 222, 228 [SD NY 1998] [“cooperative apartment ownership is sui gene ris”], affg 215 BR 930, 934 [SD NY 1998].) Especially apt to this decision is the Appellate Division, Second Department’s opinion in Moloney v Weingarten ( 118 AD2d 836 [1986], lv denied 69 NY2d 608 [1987]), holding that contracts concerning co-op apartments must satisfy the statute of frauds (General Obligations Law

2009Co., 9 Misc 3d 450, 452 [Sup Ct, NY County 2005] [“Courts have labored inconclusively in deciding whether cooperative apartment ownership is an interest in real or personal property”]; accord In re Lefrak, 227 BR 222, 228 [SD NY 1998] [“cooperative apartment ownership is sui gene ris”], affg 215 BR 930, 934 [SD NY 1998].) Especially apt to this decision is the Appellate Division, Second Department’s opinion in Moloney v Weingarten ( 118 AD2d 836 [1986], lv denied 69 NY2d 608 [1987]), holding that contracts concerning co-op apartments must satisfy the statute of frauds (General Obligations Law

2009While the statute of frauds requires a writing with respect to contracts “to pay compensation for services rendered in . . . creating ... a partnership interest” (General Obligations Law § 5-701 [a] [10]), it has been held that “an oral joint venture agreement that involves interests in real property . . . does not run afoul of the writing requirement because the underlying interest in the joint venture is properly considered personalty” (Hydro Invs. v Trafalgar Power, 6 AD3d 882, 885 [2004]; see Barash v Estate of Sperlin, 271 AD2d 558, 559 [2000]).

2009Co., 9 Misc 3d 450, 452 [Sup Ct, NY County 2005] [“Courts have labored inconclusively in deciding whether cooperative apartment ownership is an interest in real or personal property”]; accord In re Lefrak, 227 BR 222, 228 [SD NY 1998] [“cooperative apartment ownership is sui gene ris”], affg 215 BR 930, 934 [SD NY 1998].) Especially apt to this decision is the Appellate Division, Second Department’s opinion in Moloney v Weingarten ( 118 AD2d 836 [1986], lv denied 69 NY2d 608 [1987]), holding that contracts concerning co-op apartments must satisfy the statute of frauds (General Obligations Law

2009Corp., 43 NY2d 260, 266 [1977] [“too broad an interpretation (of General Obligations Law § 5-701) would extend the writing requirement to unintended situations”]; cf. Ostrove v Michaels, 289 AD2d 211, 212 [2001]).

2007While the mere payment of money is not enough to constitute part performance, “other acts, such as taking possession or making improvements, when combined with the payment of rent, may be sufficient” (Tuttle, Pendelton & Gelston v Dronart Realty Corp., 90 AD2d 830, 831 [1982]).

2007Although the statute of frauds generally prohibits the creation of “[a]n estate or interest in real property ... or any trust or power, over or concerning real property . . . unless . . . by a deed or conveyance in writing” (General Obligations Law § 5-703 [1]), there is an exception to the writing requirement “where there is part performance that is ‘unequivocally referable’ to an oral agreement” (Spirt v Spirt, 209 AD2d 688, 689 [1994]; see General Obligations Law § 5-703 [4] [“Nothing contained in this section abridges the powers of courts of equity to compel the specific performance of agr

2006Maintenance Co. of Cal. Inc. v Federation Bank & Trust Co., 213 F Supp 412, 416 [1963]).