performance doctrine in New York

2002Assuming, arguendo, that a partial performance exception to General Obligations Law § 5-701 still exists after Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group PLC ( 93 NY2d 229 , 234 n 1), plaintiff may not rely upon it because she will not be able to show that her actions were unequivocally referable to the alleged agreement to pay her a finder’s fee (see, Anostario v Vicinanzo, 59 NY2d 662, 664 ).

1992Whether oral modification of a surviving separation agreement with a no-oral-modification clause is enforceable and may satisfy the Statute of Frauds in certain circumstances, we nevertheless conclude in this case that respondent former wife has not sufficiently presented a basis for application of the narrow partial performance exception to the Statute of Frauds (General Obligations Law § 5-703 [1]; § 15-301 [1]; Anostario v Vicinanzo, supra).

1991Indeed, under the doctrine of substantial performance, any defective or omitted work must be "slight” (Spence v Ham, 163 NY 220, 225 ), "trivial” (Jacob & Youngs v Kent, 230 NY 239, 241 ) or "minor” (Wilson Roofing & Painting v Jobco-Kelly Assocs., 128 AD2d 953, 954 , lv denied 70 NY2d 828 ).

1955Although we recognize the harsh results which may be occasioned by a failure to perform a condition precedent are often softened by the doctrine of substantial performance (Jacob & Youngs v. Kent, supra; Spence v. Ham, 163 N. Y. 220 ; Van Clief v. Van Vechten, 130 N. Y. 571 ), we cannot, on the other hand, excuse a complete failure to perform without either a valid reason for noncompliance or even an attempt to perform, the prerequisite considered by the parties sufficiently substantial to make it a condition precedent to payment.

1976(Schultze v Goodstein, 180 N. Y. 248 ; Smith v Brady, 17 N. Y. 173 .) Substantial performance might make compliance with an express condition unnecessary, but only when the departure from full performance is an inconsiderable trifle having no pecuniary importance. (3 Williston on Contracts [Rev. ed.], § 805.)” In Witherell the court denied recovery of the final payment under a building contract where the contractor failed to perform a condition precedent.

1920(Smith v. Brady, 17 N. Y. 173 ; Cunningham v. Jones, 20 id. 486; Bonesteel v. Mayor, etc., 22 id. 162; Walker v. Millard, 29 id. 375; Glacius v. Black , 50 id. 145 ; Catlin v. Tobias, 26 id. 217 ; Husted v. Craig, 36 id. 221 ; Flaherty v. Miner, 123 id. 382; Hare on Contracts, 569; Leake on Contracts, 821.) ” It may be that the plaintiff can establish waiver, estoppel or some fact of legal excuse for his breach of the condition precedent, but until then I think that he cannot recover on the doctrine of substantial performance.

2024Specifically, this Court went on to find that Supreme Court correctly denied defendants' motion to dismiss the specific performance claim ( id. ).

2024Specifically, this Court went on to find that Supreme Court correctly denied defendants' motion to dismiss the specific performance claim ( id. ).

2019The failure to reduce the agreement to writing may not be excused by defendants' alleged partial performance thereof, as this Court has definitively held that the partial performance exception does not apply to GOL § 5-701 - the provision at issue here ( see Gural v Drasner , 114 AD3d 25 , 29-32 [1st Dept 2013], lv dismissed 24 NY3d 935 [2014]).

2016This Court has held, however, that the partial performance exception applies only to the statute of frauds provision in section 5-703, and has not been extended to section 5-701 (Gural v Drasner, 114 AD3d 25 , 32 [1st Dept 2013] [“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”], lv dismissed 24 NY3d 935 [2014]).

2019The failure to reduce the agreement to writing may not be excused by defendants' alleged partial performance thereof, as this Court has definitively held that the partial performance exception does not apply to GOL § 5-701 - the provision at issue here ( see Gural v Drasner , 114 AD3d 25 , 29-32 [1st Dept 2013], lv dismissed 24 NY3d 935 [2014]).

2016This Court has held, however, that the partial performance exception applies only to the statute of frauds provision in section 5-703, and has not been extended to section 5-701 (Gural v Drasner, 114 AD3d 25 , 32 [1st Dept 2013] [“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”], lv dismissed 24 NY3d 935 [2014]).

1977In Matter of McHugh (Levine) ( 47 AD2d 676 , supra), this court observed: "Under the enlightened approach set forth by the Court of Appeals in Matter of James (Levine) (34 N Y 2d 491), it is not every technical violation of a company rule which rises to the level of misconduct, and oftentimes such rules are either unenforced, overlooked, or waived by acceptance of other acts or practices which in a different setting would be considered acceptable under the doctrine of substantial performance.” As an additional matter, the claimant upon this appeal contends that the referee unduly interfered wi

1976As we stated in Matter of McHugh (Levine) ( 47 AD2d 676 ), "oftentimes such [company] rules are either unenforced, overlooked, or waived by acceptance of other acts or practices which in a different setting would be considered acceptable under the doctrine of substantial performance.” Claimant’s testimony in the present case that the company rule involved was not enforced over the years is not contradicted.

1976(Schultze v Goodstein, 180 N. Y. 248 ; Smith v Brady, 17 N. Y. 173 .) Substantial performance might make compliance with an express condition unnecessary, but only when the departure from full performance is an inconsiderable trifle having no pecuniary importance. (3 Williston on Contracts [Rev. ed.], § 805.)” In Witherell the court denied recovery of the final payment under a building contract where the contractor failed to perform a condition precedent.

1955(Schultze v. Goodstein, 180 N. Y. 248 ; Smith v. Brady, 17 N. Y. 173 .) Substantial performance might make compliance with an express condition unnecessary, but only when the departure from full performance is an inconsiderable trifle having no pecuniary importance. (3 Williston on Contracts [Rev. ed.], § 805.) The Jacob & Youngs v. Kent decision [supra) might be said to come in this class, as would Nolan v. Whitney ( 88 N. Y. 648 ), Woodward v. Fuller ( 80 N. Y. 312 ) and Spence v. Ham [supra).

1976(Witherell v Lasky, supra.) In Witherell the court stated (p 536): "Although we recognize the harsh results which may be occasioned by a failure to perform a condition precedent are often softened by the doctrine of substantial performance (Jacob & Youngs v Kent, supra; Spence v Ham, 163 NY 220 ; Van Clief v Van Vechten, 130 NY 571 ), we cannot, on the other hand, excuse a complete failure to perform without either a valid reason for noncompliance or even an attempt to perform, the prerequisite considered by the parties sufficiently substantial to make it a condition, precedent to payment.

1955Although we recognize the harsh results which may be occasioned by a failure to perform a condition precedent are often softened by the doctrine of substantial performance (Jacob & Youngs v. Kent, supra; Spence v. Ham, 163 N. Y. 220 ; Van Clief v. Van Vechten, 130 N. Y. 571 ), we cannot, on the other hand, excuse a complete failure to perform without either a valid reason for noncompliance or even an attempt to perform, the prerequisite considered by the parties sufficiently substantial to make it a condition precedent to payment.

2026A defendant is entitled to judgment dismissing a specific performance claim where the plaintiff purchaser “submit[s] no evidence of its financial ability to pay the balance of the purchase price” (3801 Review Realty LLC v Review Realty Co. LLC, 111 AD3d 509 , 509- 510 [1st Dept 2013]).

2019The Performance defendants' submissions, which showed that Locicero's driver license listed a Kings County address and his vehicle's registration listed a Richmond County address, failed to conclusively establish that Locicero's sole residence was in Richmond County and that he did not have a residence in Kings County when the action was commenced ( see Patton v Malychev , 132 AD3d 829, 830 ; Feather v Goglia , 65 AD3d 1186, 1187 ).

2019Furthermore, in opposition, the plaintiff submitted evidence that additionally raised issues of fact regarding Locicero's residence at the time of commencement of the action ( see Patton v Malychev , 132 AD3d at 830 ; Tiangco v Andrickson , 116 AD3d 763, 764 ; Feather v Goglia , 65 AD3d at 1187 ).

2019Co. , 102 AD3d 905 , 906; Forbes v Rubinovich , 94 AD3d 809 ; Horowicz v RSD Transp. , 249 AD2d 511 ).

2019Although the Performance defendants failed to establish their entitlement to seek a change of venue as a matter of right ( cf. CPLR 511[a]; Corea v Browne , 45 AD3d 623, 624 ), the court nonetheless was empowered to consider the motion in the exercise of its discretion ( see Nunez v Yonkers Racing Corp. , 153 AD3d 1355 ; Carobert v Baldor Elec.

2019Although the Performance defendants failed to establish their entitlement to seek a change of venue as a matter of right ( cf. CPLR 511[a]; Corea v Browne , 45 AD3d 623, 624 ), the court nonetheless was empowered to consider the motion in the exercise of its discretion ( see Nunez v Yonkers Racing Corp. , 153 AD3d 1355 ; Carobert v Baldor Elec.

2019Co. , 102 AD3d 905 , 906; Forbes v Rubinovich , 94 AD3d 809 ; Horowicz v RSD Transp. , 249 AD2d 511 ).

2019The Performance defendants' submissions, which showed that Locicero's driver license listed a Kings County address and his vehicle's registration listed a Richmond County address, failed to conclusively establish that Locicero's sole residence was in Richmond County and that he did not have a residence in Kings County when the action was commenced ( see Patton v Malychev , 132 AD3d 829, 830 ; Feather v Goglia , 65 AD3d 1186, 1187 ).

2019Furthermore, in opposition, the plaintiff submitted evidence that additionally raised issues of fact regarding Locicero's residence at the time of commencement of the action ( see Patton v Malychev , 132 AD3d at 830 ; Tiangco v Andrickson , 116 AD3d 763, 764 ; Feather v Goglia , 65 AD3d at 1187 ).

2019Furthermore, in opposition, the plaintiff submitted evidence that additionally raised issues of fact regarding Locicero's residence at the time of commencement of the action ( see Patton v Malychev , 132 AD3d at 830 ; Tiangco v Andrickson , 116 AD3d 763, 764 ; Feather v Goglia , 65 AD3d at 1187 ).

2019Although the Performance defendants failed to establish their entitlement to seek a change of venue as a matter of right ( cf. CPLR 511[a]; Corea v Browne , 45 AD3d 623, 624 ), the court nonetheless was empowered to consider the motion in the exercise of its discretion ( see Nunez v Yonkers Racing Corp. , 153 AD3d 1355 ; Carobert v Baldor Elec.

2019Although the Performance defendants failed to establish their entitlement to seek a change of venue as a matter of right ( cf. CPLR 511[a]; Corea v Browne , 45 AD3d 623, 624 ), the court nonetheless was empowered to consider the motion in the exercise of its discretion ( see Nunez v Yonkers Racing Corp. , 153 AD3d 1355 ; Carobert v Baldor Elec.

2019Co. , 102 AD3d 905 , 906; Forbes v Rubinovich , 94 AD3d 809 ; Horowicz v RSD Transp. , 249 AD2d 511 ).

2016In opposition, plaintiff failed to raise an issue of fact as to whether Dr. Jeffrey Dello Russo had any involvement with the subsequent topography performed on plaintiff, rendering his expert’s conclusion that Dr. Jeffrey Dello Russo should have known plaintiff was a poor candidate for Lasik surgery as unsupported by the record (Feaster-Lewis v Rotenberg, 93 AD3d 421 , 422 [1st Dept 2012], lv denied 19 NY3d 803 [2012]; see Bacani v Rosenberg, 74 AD3d 500, 502 [1st Dept 2010], lv denied 15 NY3d 708 [2010]).

2016Defendant grouses about the performance of defense counsel in other respects, but we are satisfied that, when “viewed in totality and as of the time of the representation,” he received meaningful representation (People v Baldi, 54 NY2d at 147 ; see People v Heidgen, 22 NY3d 259, 278-279 [2013]).

2016The Second Circuit determined that resolution of the appeal depended on unsettled New York law, and certified two questions concerning the propriety of GM’s performance standard and unilateral modification under the Dealer Act ( 787 F3d 663 [2d Cir 2015]).

2016The Second Circuit determined that resolution of the appeal depended on unsettled New York law, and certified two questions concerning the propriety of GM's performance standard and unilateral modification under the Dealer Act ( 787 F3d 663 [2d Cir 2015]).