part performance doctrine in New York

2025"Under the part performance doctrine, 'it is the conduct of the entity seeking to enforce the agreement, and its detrimental reliance on the agreement, that makes proper the invocation of equitable principles'@ ( McCormick v Bechtol , 68 AD3d 1376, 1379 [3d Dept 2009], lv denied 15 NY3d 701 [2010], quoting Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group , 93 NY2d 229, 236 [1999]; see Anostario v Vicinanzo , 59 NY2d 662, 664 [1983]).

2025"Under the part performance doctrine, 'it is the conduct of the entity seeking to enforce the agreement, and its detrimental reliance on the agreement, that makes proper the invocation of equitable principles'@ ( McCormick v Bechtol , 68 AD3d 1376, 1379 [3d Dept 2009], lv denied 15 NY3d 701 [2010], quoting Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group , 93 NY2d 229, 236 [1999]; see Anostario v Vicinanzo , 59 NY2d 662, 664 [1983]).

2025"Under the part performance doctrine, 'it is the conduct of the entity seeking to enforce the agreement, and its detrimental reliance on the agreement, that makes proper the invocation of equitable principles'@ ( McCormick v Bechtol , 68 AD3d 1376, 1379 [3d Dept 2009], lv denied 15 NY3d 701 [2010], quoting Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group , 93 NY2d 229, 236 [1999]; see Anostario v Vicinanzo , 59 NY2d 662, 664 [1983]).

2025"Under the part performance doctrine, 'it is the conduct of the entity seeking to enforce the agreement, and its detrimental reliance on the agreement, that makes proper the invocation of equitable principles'@ ( McCormick v Bechtol , 68 AD3d 1376, 1379 [3d Dept 2009], lv denied 15 NY3d 701 [2010], quoting Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group , 93 NY2d 229, 236 [1999]; see Anostario v Vicinanzo , 59 NY2d 662, 664 [1983]).

2025"Under the part performance doctrine, 'it is the conduct of the entity seeking to enforce the agreement, and its detrimental reliance on the agreement, that makes proper the invocation of equitable principles'@ ( McCormick v Bechtol , 68 AD3d 1376, 1379 [3d Dept 2009], lv denied 15 NY3d 701 [2010], quoting Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group , 93 NY2d 229, 236 [1999]; see Anostario v Vicinanzo , 59 NY2d 662, 664 [1983]).

2025"Under the part performance doctrine, 'it is the conduct of the entity seeking to enforce the agreement, and its detrimental reliance on the agreement, that makes proper the invocation of equitable principles'@ ( McCormick v Bechtol , 68 AD3d 1376, 1379 [3d Dept 2009], lv denied 15 NY3d 701 [2010], quoting Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group , 93 NY2d 229, 236 [1999]; see Anostario v Vicinanzo , 59 NY2d 662, 664 [1983]).

2021A party who relies on the part performance exception must demonstrate that his or her actions are "unequivocally referable" to the oral agreement which he or she seeks to establish ( see Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group , 93 NY2d 229, 235 ; Weiss v Halperin , 149 AD3d 1143, 1145 ; Barretti v Detore , 95 AD3d 803, 806 ). "'Unequivocally referable' conduct is conduct which is inconsistent with any other explanation" ( Barretti v Detore , 95 AD3d at 806 [internal quotation marks omitted]).

2021A party who relies on the part performance exception must demonstrate that his or her actions are "unequivocally referable" to the oral agreement which he or she seeks to establish ( see Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group , 93 NY2d 229, 235 ; Weiss v Halperin , 149 AD3d 1143, 1145 ; Barretti v Detore , 95 AD3d 803, 806 ). "'Unequivocally referable' conduct is conduct which is inconsistent with any other explanation" ( Barretti v Detore , 95 AD3d at 806 [internal quotation marks omitted]).

2013Further, the part-performance exception to the statute of frauds did not apply (see Anostario v Vicinanzo, 59 NY2d 662, 664 [1983]; Singh v Kur, 64 AD3d 697, 698 [2009]; 745 Nostrand Retail Ltd. v 745 Jeffco Corp., 50 AD3d 768, 769 [2008]; Carey & Assoc. v Ernst, 27 AD3d 261, 263 [2006]).

2013Further, the part-performance exception to the statute of frauds did not apply (see Anostario v Vicinanzo, 59 NY2d 662, 664 [1983]; Singh v Kur, 64 AD3d 697, 698 [2009]; 745 Nostrand Retail Ltd. v 745 Jeffco Corp., 50 AD3d 768, 769 [2008]; Carey & Assoc. v Ernst, 27 AD3d 261, 263 [2006]).

2014Contrary to the plaintiffs contention, the part performance exception to the statute of frauds is inapplicable, as the plaintiffs alleged actions were not “unequivocally referable” to the alleged oral agreement (Mess ner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229, 235 [1999]; see Anostario v Vicinanzo, 59 NY2d 662, 664 [1983]; Burns v McCormick, 233 NY 230, 232 [1922]).

2008The plaintiffs rely on the equitable doctrine of part performance (see General Obligations Law § 5-703 [4]), which required conduct by them which was “unequivocally referable” to the purported 10-year lease (Burns v McCormick, 233 NY 230, 234 [1922]).

2009Significantly, the doctrine of part performance “is based on principles of equity, in particular, recognition of the fact that the purpose of the Statute of Frauds is to prevent frauds, not to enable a party to perpetrate a fraud by using the statute as a sword rather than a shield” (Nicolaides v Nicolaides, 173 AD2d 448, 449-450 [1991]; see Scutti Enters, v Wackerman Guchone Custom Bldrs., 153 AD2d 83, 87 [1989]).

1995Significantly, the doctrine of part performance 'is based on principles of equity, in particular, recognition of the fact that the purpose of the Statute of Frauds is to prevent frauds, not to enable a party to perpetrate a fraud by using the statute as a sword rather than a shield’ (Scutti Enters. v Wackerman Guchone Custom Bldrs., 153 AD2d 83, 87 )” (Nicolaides v Nicolaides, 173 AD2d 448, 449-450 ).

2013Further, the part-performance exception to the statute of frauds did not apply (see Anostario v Vicinanzo, 59 NY2d 662, 664 [1983]; Singh v Kur, 64 AD3d 697, 698 [2009]; 745 Nostrand Retail Ltd. v 745 Jeffco Corp., 50 AD3d 768, 769 [2008]; Carey & Assoc. v Ernst, 27 AD3d 261, 263 [2006]).

2013Further, the part-performance exception to the statute of frauds did not apply (see Anostario v Vicinanzo, 59 NY2d 662, 664 [1983]; Singh v Kur, 64 AD3d 697, 698 [2009]; 745 Nostrand Retail Ltd. v 745 Jeffco Corp., 50 AD3d 768, 769 [2008]; Carey & Assoc. v Ernst, 27 AD3d 261, 263 [2006]).

2013The application of section 5-701 (a) (1) is limited to contracts that “have absolutely no possibility in fact and law of full performance within one year” (Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998] [emphasis added]). “[T]he statute does not include an agreement which is simply not likely to be performed, nor yet one which is simply not expected to be performed within the space of a year.

2013The application of section 5-701 (a) (1) is limited to contracts that “have absolutely no possibility in fact and law of full performance within one year” (Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998] [emphasis added]). “[T]he statute does not include an agreement which is simply not likely to be performed, nor yet one which is simply not expected to be performed within the space of a year.

2013In 1889, the Court held that “[a]n oral contract, invalid by the statute of frauds, because by its terms it is not to be performed within one year from the making thereof, is not validated by part performance” (Wahl v Barnum, 116 NY 87, 98 [1889]).

2013In 1889, the Court held that “[a]n oral contract, invalid by the statute of frauds, because by its terms it is not to be performed within one year from the making thereof, is not validated by part performance” (Wahl v Barnum, 116 NY 87, 98 [1889]).

2013Further, the part-performance exception to the statute of frauds did not apply (see Anostario v Vicinanzo, 59 NY2d 662, 664 [1983]; Singh v Kur, 64 AD3d 697, 698 [2009]; 745 Nostrand Retail Ltd. v 745 Jeffco Corp., 50 AD3d 768, 769 [2008]; Carey & Assoc. v Ernst, 27 AD3d 261, 263 [2006]).

2013Further, the part-performance exception to the statute of frauds did not apply (see Anostario v Vicinanzo, 59 NY2d 662, 664 [1983]; Singh v Kur, 64 AD3d 697, 698 [2009]; 745 Nostrand Retail Ltd. v 745 Jeffco Corp., 50 AD3d 768, 769 [2008]; Carey & Assoc. v Ernst, 27 AD3d 261, 263 [2006]).

2013Gural suggests that applying the part performance exception to permit enforcement of an alleged oral agreement that cannot be performed within one year should be permissible because it does not contravene the purpose of the statute of frauds, namely, to prevent perjured testimony or casual oral statements from fraudulently imposing a contract on a party that did not, in fact, enter into a binding agreement (see Intercontinental Planning v Daystrom, Inc., 24 NY2d 372, 385 [1969]).

2013Gural suggests that applying the part performance exception to permit enforcement of an alleged oral agreement that cannot be performed within one year should be permissible because it does not contravene the purpose of the statute of frauds, namely, to prevent perjured testimony or casual oral statements from fraudulently imposing a contract on a party that did not, in fact, enter into a binding agreement (see Intercontinental Planning v Daystrom, Inc., 24 NY2d 372, 385 [1969]).

2021"Significantly, the doctrine of part performance 'is based on principles of equity, in particular, recognition of the fact that the purpose of the Statute of Frauds is to prevent frauds, not to enable a party to perpetrate a fraud by using the statute as a sword rather than a shield'" ( Pinkava v Yurkiw , 64 AD3d at 692 , quoting Nicolaides v Nicolaides , 173 AD2d 448, 450 ).

2021"Significantly, the doctrine of part performance 'is based on principles of equity, in particular, recognition of the fact that the purpose of the Statute of Frauds is to prevent frauds, not to enable a party to perpetrate a fraud by using the statute as a sword rather than a shield'" ( Pinkava v Yurkiw , 64 AD3d at 692 , quoting Nicolaides v Nicolaides , 173 AD2d 448, 450 ).

2013Nevertheless, we now reject the reasoning of those cases, and hold, as did this Court in Stephen Pevner, Inc. v Ensler ( 309 AD2d 722 [1st Dept 2003]), that the law simply does not provide for or permit a part performance exception for oral contracts other than those to which General Obligations Law § 5-703 applies (see also Bowman v Di Placidi, 27 AD3d 259 [1st Dept 2006]; Brown v Brown, 12 AD3d 176 [1st Dept 2004]; Tradewinds Fin.

2013Nevertheless, we now reject the reasoning of those cases, and hold, as did this Court in Stephen Pevner, Inc. v Ensler ( 309 AD2d 722 [1st Dept 2003]), that the law simply does not provide for or permit a part performance exception for oral contracts other than those to which General Obligations Law § 5-703 applies (see also Bowman v Di Placidi, 27 AD3d 259 [1st Dept 2006]; Brown v Brown, 12 AD3d 176 [1st Dept 2004]; Tradewinds Fin.

2013The doctrine of part performance -2- 186 CA 12-01779 is not applicable to actions governed by section 5-701 (see Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229 , 234 n 1; Stephen Pevner, Inc. v Ensler, 309 AD2d 722, 722 ; Valentino v Davis, 270 AD2d 635, 637-638 ).

2013According to the Third Department in Valentino v Davis ( 270 AD2d 635, 637 [3d Dept 2000]), “[t]o the extent that plaintiff attempts to avoid the Statute of Frauds defense by arguing that the doctrine of part performance should be applied, we reject this argument.

2006The obvious difference is that here, there is no evidence that defendants induced or permitted plaintiff to seek a zoning change for the property about to be transferred (see Woolley, 222 NY at 351 [party asserting statute of frauds may lose its protection “by inducing or permitting without remonstrance another party to the agreement to do acts, pursuant to and in reliance upon the agreement, to such an extent and so substantial in quality as to irremediably alter (the) situation and make the interposition of the statute against performance a fraud”]).

1999It is long settled under New York’s Statute of Frauds that an oral agreement to convey an estate or interest in real property, other than a lease for a term not exceeding one year, is “nugatory and unenforceable,” and “[a] party to the agreement may legally and rightfully refuse to recognize or perform it” (Woolley v Stewart, 222 NY 347, 350-351 ; General Obligations Law § 5-703).

2000In the underlying Federal decisions, the Federal District Court (see, Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 974 F Supp 270, 275 , affd 186 F3d 135 ) and the Second Circuit (see, Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 150 F3d 194, 195-196, n 1 ) each noted that a judicially created part performance exception to General Obligations Law § 5-701 had been recognized by the Court of Appeals, citing to its decision in Anostario v Vincinanzo ( 59 NY2d 662 ).

1999Finding that the unresolved issues “concern [ed] the proper interpretation and application of New York’s part performance exception to the Statute of Frauds” ( 150 F3d 194, 195 ), the Second Circuit certified the following two questions for this Court’s review: “I.

2023Inasmuch as plaintiff's remaining causes of action seek monetary damages only, "the action no longer [is] one in which the judgment demanded would affect title to, or the possession, use, or enjoyment of, real property" ( DeCaro v East of E., LLC , 95 AD3d 1163, 1164 [2d Dept 2012]; see CPLR 6501, 6514 [a]; Renfro v Herrald , 206 AD3d 1573, 1573-1574 [4th Dept 2022]).

2023Inasmuch as plaintiff's remaining causes of action seek monetary damages only, "the action no longer [is] one in which the judgment demanded would affect title to, or the possession, use, or enjoyment of, real property" ( DeCaro v East of E., LLC , 95 AD3d 1163, 1164 [2d Dept 2012]; see CPLR 6501, 6514 [a]; Renfro v Herrald , 206 AD3d 1573, 1573-1574 [4th Dept 2022]).