statute of frauds defense in New York

2022The Waxy defendants argue that, because an agreement to answer for the debt of another must be in writing or is void ( see General Obligations Law § 5-701 [a] [2]), Trinity must additionally "demonstrate that it would be unconscionable to invoke the statute of frauds to bar" a promissory estoppel claim ( Fleet Bank v Pine Knoll Corp. , 290 AD2d at 797 ; see Matter of Hennel , 29 NY3d 487, 493 [2017] [noting that "the statute of frauds will not apply if petitioners can establish the elements of promissory estoppel and that they would [*4]otherwise suffer unconscionable injury"]; Castellotti v F

2015Petitioners endeavor to do so by arguing that “it would be unconscionable to invoke the statute of frauds to bar [their] claim” (Fleet Bank v Pine Knoll Corp., 290 AD2d at 797 ; see Bernard v Langan Porsche Audi, 143 AD2d 495, 496 [1988]; Buddman Distribs. v Labatt Importers, 91 AD2d 838, 839 [1982]).

1994Regarding the Statute of Frauds defense, New York courts have consistently held that General Obligations Law § 5-701 (a) (1) is to be strictly construed and limited to those contracts that "by their very terms have absolutely no possibility in fact and law of full performance within one year” (D & N Boening v Kirsch Beverages, 63 NY2d 449, 454 ; Weiner v McGraw-Hill, Inc., 57 NY2d 458, 463 ; Marini v D’Apolito, 162 AD2d 391, 393 ).

1988It is well settled that under these circumstances an oral contract is considered fully performable within one year, and the Statute of Frauds defense is without merit (Blake v Voigt, 134 NY 69 ; see, D & N Boening v Kirsch Beverages, 63 NY2d 449, 455 ).

2014Hydropower, L.P., 114 AD3d 1249, 1249-1250 [2014]).

2014Hydropower, L.P., 114 AD3d 1249, 1249-1250 [2014]).

2014In any event, even if plaintiff had sought the appropriate injunctive relief pursuant to CPLR 5518, and even assuming, arguendo, that an issue of fact exists whether Zeta Psi should be equitably estopped from asserting the statute of frauds defense, the record establishes that plaintiff and Zeta Psi had, at most, an agreement to agree, which is unenforceable (see Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d 105, 109-110 [1981]; Plumley v Erie Blvd.

2014In any event, even if plaintiff had sought the appropriate injunctive relief pursuant to CPLR 5518, and even assuming, arguendo, that an issue of fact exists whether Zeta Psi should be equitably estopped from asserting the statute of frauds defense, the record establishes that plaintiff and Zeta Psi had, at most, an agreement to agree, which is unenforceable (see Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d 105, 109-110 [1981]; Plumley v Erie Blvd.

2012Lyme cannot assert a statute of frauds defense to defeat plaintiffs assertion that he held equitable title pursuant to the oral agreement (see General Obligations Law § 5-703 [3]), as the defense is personal and cannot be raised by a stranger to the agreement (see Ferry v Ferry, 13 AD3d 765, 766 [2004]; Matter of Lee v Maltais, 250 AD2d 951, 953 [1998], lv denied 92 NY2d 809 [1998]; Vincent v Seaman, 152 AD2d 841, 843 [1989]).

2012Lyme cannot assert a statute of frauds defense to defeat plaintiffs assertion that he held equitable title pursuant to the oral agreement (see General Obligations Law § 5-703 [3]), as the defense is personal and cannot be raised by a stranger to the agreement (see Ferry v Ferry, 13 AD3d 765, 766 [2004]; Matter of Lee v Maltais, 250 AD2d 951, 953 [1998], lv denied 92 NY2d 809 [1998]; Vincent v Seaman, 152 AD2d 841, 843 [1989]).

2017As this is a summary proceeding, landlords cannot rely on the doctrine of part performance to defeat the statute of frauds defense (see Zito v County of Suffolk, 106 AD3d 814, 815-816 [2013]; Stainless Broadcasting Co. v Clear Channel Broadcasting Licenses, L.P., 58 AD3d 1010, 1012 [2009]).

2013Significantly, it has been held that where an action “is pleaded as one at law, and seeks only money damages, without any specific prayer for equitable relief, the plaintiff cannot rely on the doctrine of part performance to defeat the statute of frauds defense” (Zito v County of Suffolk, 106 AD3d 814, 816 [2d Dept 2013]; see also Sparks Assoc., LLC v North Hills Holding Co. II, LLC, 94 AD3d 864, 865 [2d Dept 2012] [part performance may be sufficient in some circumstances to overcome the statute of frauds, “but only in an action for specific performance”]; Stainless Broadcasting Co. v Clear Ch

2016In such regard, defendants failed to show that the oral agreements alleged by plaintiffs, “by their terms, ‘have absolutely no possibility in fact and law of full performance within one year’ ” (Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998], quoting D & N Boening v Kirsch Beverages, 63 NY2d 449, 454 [1984]; see Gizara v New York Times Co., 80 AD3d 1026, 1028 [2011]).

2003Because plaintiff’s rights to SRPs under the Retirement Plan became fixed once he was deemed to have taken early retirement at the specific written request of the executive committee (if this was, indeed, the parties’ oral agreement), and because computation of the actual amount of plaintiffs SRPs would be “a mere ministerial act,” the fact that the payments wpuld extend into the future does not cause the statute of frauds to bar plaintiffs claim (see Pando v Fernandez, 127 Misc 2d 224, 227 [1984], revd on other grounds 118 AD2d 474 [1986]; see also Cron v Hargro Fabrics, 91 NY2d 362, 369-370

2015Petitioners endeavor to do so by arguing that “it would be unconscionable to invoke the statute of frauds to bar [their] claim” (Fleet Bank v Pine Knoll Corp., 290 AD2d at 797 ; see Bernard v Langan Porsche Audi, 143 AD2d 495, 496 [1988]; Buddman Distribs. v Labatt Importers, 91 AD2d 838, 839 [1982]).

2015Petitioners endeavor to do so by arguing that “it would be unconscionable to invoke the statute of frauds to bar [their] claim” (Fleet Bank v Pine Knoll Corp., 290 AD2d at 797 ; see Bernard v Langan Porsche Audi, 143 AD2d 495, 496 [1988]; Buddman Distribs. v Labatt Importers, 91 AD2d 838, 839 [1982]).

2015Petitioners endeavor to do so by arguing that “it would be unconscionable to invoke the statute of frauds to bar [their] claim” (Fleet Bank v Pine Knoll Corp., 290 AD2d at 797 ; see Bernard v Langan Porsche Audi, 143 AD2d 495, 496 [1988]; Buddman Distribs. v Labatt Importers, 91 AD2d 838, 839 [1982]).

2015Petitioners endeavor to do so by arguing that “it would be unconscionable to invoke the statute of frauds to bar [their] claim” (Fleet Bank v Pine Knoll Corp., 290 AD2d at 797 ; see Bernard v Langan Porsche Audi, 143 AD2d 495, 496 [1988]; Buddman Distribs. v Labatt Importers, 91 AD2d 838, 839 [1982]).

2015A more troubling issue arises because promissory estoppel is generally unavailable to bar a statute of frauds defense (see Cohen v Brown, Harris, Stevens, 64 NY2d 728, 730 [1984]).

2015A more troubling issue arises because promissory estoppel is generally unavailable to bar a statute of frauds defense (see Cohen v Brown, Harris, Stevens, 64 NY2d 728, 730 [1984]).

2014Supreme Court properly denied plaintiffs motions for spoliation sanctions, as there was no showing of prejudice (see Baldwin v Gerard Ave., LLC, 58 AD3d 484, 485 [1st Dept 2009]).

2014Supreme Court properly denied plaintiffs motions for spoliation sanctions, as there was no showing of prejudice (see Baldwin v Gerard Ave., LLC, 58 AD3d 484, 485 [1st Dept 2009]).

2014“Leave to amend a pleading should be freely given absent prejudice or surprise to the opposing party, unless the proposed amendment is palpably insufficient or patently devoid of merit” (Faiella v Tysens Park Apts., LLC, 110 AD3d 1028 , 1029 [2013]; see CPLR 3025 [b]; Carroll v Motola, 109 AD3d 629, 630 [2013]).

2014“Leave to amend a pleading should be freely given absent prejudice or surprise to the opposing party, unless the proposed amendment is palpably insufficient or patently devoid of merit” (Faiella v Tysens Park Apts., LLC, 110 AD3d 1028 , 1029 [2013]; see CPLR 3025 [b]; Carroll v Motola, 109 AD3d 629, 630 [2013]).

2012Lyme cannot assert a statute of frauds defense to defeat plaintiffs assertion that he held equitable title pursuant to the oral agreement (see General Obligations Law § 5-703 [3]), as the defense is personal and cannot be raised by a stranger to the agreement (see Ferry v Ferry, 13 AD3d 765, 766 [2004]; Matter of Lee v Maltais, 250 AD2d 951, 953 [1998], lv denied 92 NY2d 809 [1998]; Vincent v Seaman, 152 AD2d 841, 843 [1989]).

2012Lyme cannot assert a statute of frauds defense to defeat plaintiffs assertion that he held equitable title pursuant to the oral agreement (see General Obligations Law § 5-703 [3]), as the defense is personal and cannot be raised by a stranger to the agreement (see Ferry v Ferry, 13 AD3d 765, 766 [2004]; Matter of Lee v Maltais, 250 AD2d 951, 953 [1998], lv denied 92 NY2d 809 [1998]; Vincent v Seaman, 152 AD2d 841, 843 [1989]).

2012Lyme cannot assert a statute of frauds defense to defeat plaintiffs assertion that he held equitable title pursuant to the oral agreement (see General Obligations Law § 5-703 [3]), as the defense is personal and cannot be raised by a stranger to the agreement (see Ferry v Ferry, 13 AD3d 765, 766 [2004]; Matter of Lee v Maltais, 250 AD2d 951, 953 [1998], lv denied 92 NY2d 809 [1998]; Vincent v Seaman, 152 AD2d 841, 843 [1989]).

2012Lyme cannot assert a statute of frauds defense to defeat plaintiffs assertion that he held equitable title pursuant to the oral agreement (see General Obligations Law § 5-703 [3]), as the defense is personal and cannot be raised by a stranger to the agreement (see Ferry v Ferry, 13 AD3d 765, 766 [2004]; Matter of Lee v Maltais, 250 AD2d 951, 953 [1998], lv denied 92 NY2d 809 [1998]; Vincent v Seaman, 152 AD2d 841, 843 [1989]).

2017As this is a summary proceeding, landlords cannot rely on the doctrine of part performance to defeat the statute of frauds defense (see Zito v County of Suffolk, 106 AD3d 814, 815-816 [2013]; Stainless Broadcasting Co. v Clear Channel Broadcasting Licenses, L.P., 58 AD3d 1010, 1012 [2009]).

2013Since, here, the action is pleaded as one at law, and seeks only money damages, without any specific prayer for equitable relief, the plaintiff cannot rely on the doctrine of part performance to defeat the statute of frauds defense (see Stainless Broadcasting Co. v Clear Channel Broadcasting Licenses, L.P., 58 AD3d at 1013 ).

2010However, on appeal, this Court reversed and awarded specific performance to the buyers (see Suchin v Frederick, 30 AD3d 503 [2006]), explaining as follows: “We agree with the buyers that they established that the terms of the.unsigned contract of sale are enforceable despite the statute of frauds, because that contract is clearly referable to the same transaction as the fully executed basement construction rider, which expressly stated that the parties had a contract for the seller to sell the real property to the buyers (see Crabtree v Elizabeth Arden Sales Corp., 305 NY 48 [1953]).

1987In any event, there was sufficient documentation of defendant’s payments to plaintiffs to satisfy the Statute of Frauds requirement of "some note or memorandum” (General Obligations Law § 5-701 [a]; see, Crabtree v Arden Sales Corp., 305 NY 48 ).

2017“Part performance alone, of course, is not sufficient” (Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d at 235 ), and not every action undertaken by a party will be sufficient to defeat a statute of frauds defense.

2000The Court of Appeals has recently clarified that the doctrine of part performance cannot save contracts governed by General Obligations Law § 5-701 (see, Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229, 234, n 1 ) (hereinafter Messner).

2003Because plaintiff’s rights to SRPs under the Retirement Plan became fixed once he was deemed to have taken early retirement at the specific written request of the executive committee (if this was, indeed, the parties’ oral agreement), and because computation of the actual amount of plaintiffs SRPs would be “a mere ministerial act,” the fact that the payments wpuld extend into the future does not cause the statute of frauds to bar plaintiffs claim (see Pando v Fernandez, 127 Misc 2d 224, 227 [1984], revd on other grounds 118 AD2d 474 [1986]; see also Cron v Hargro Fabrics, 91 NY2d 362, 369-370

1987Relying on Pando v Fernandez ( 127 Misc 2d 224 [Sup Ct, NY County 1984], revd on other grounds 118 AD2d 474 [1st Dept 1986]), plaintiff states that where all the conditions and contingencies can be performed within the one-year period except for the act of payment there is no violation of the Statute of Frauds.

1996Accordingly, the alleged oral agreement is invalid and unenforceable under the Statute of Frauds since an oral agreement is void when by its terms it cannot be performed within one year from its making (see, General Obligations Law § 5-701 [a] [1]; see also, Bayside Health Club v Weidel, 170 AD2d 474 ; Beldengreen v Ashinsky, 139 Misc 2d 766 ).

1996The inclusion of this term establishes that the alleged agreement could not be performed within one year, and consequently is within the Statute of Frauds requirement that it be in writing (see, Bayside Health Club v Weidel, 170 AD2d 474 ).

2025Assoc. , 102 AD2d 388, 389 [1st Dept 1984], affd 64 NY2d 919 [1985]).

2025Assoc. , 102 AD2d 388, 389 [1st Dept 1984], affd 64 NY2d 919 [1985]).