Wolff v. 969 Park Corp.

Order, Supreme Court, New York County (Price, J.), entered August 14, 1981, which, in effect, denied defendant-appellant 969 Park Corporation’s (969) cross motion to dismiss the complaint, granted the declaratory judgment sought by plaintiffs-respondents Dr. John L. E. Wolff et al. (Wolff), to the extent of declaring that there was a two-year lease, and directed a reference to determine the length of a purported oral lease beyond a two-year period, modified, on the law, the declaration of two-year lease and reference stricken, plaintiffs-respondents’ motion for removal and consolidation granted, and, otherwise, affirmed, without costs. The underlying issues in this action are 520 whether the purported oral lease is barred by the Statute of Frauds (General Obligations Law, § 5-703, subd 2) and whether equity may relieve from its operation and compel specific performance by virtue of respondents’ alleged part performance (General Obligations Law, § 5-703, subd 4). We do not, however, reach these issues. Special Term ignored Wolff’s motion in chief and instead adjudicated the entire action. It, in effect, granted partial summary judgment in an action for declaratory judgment, where there were sharply disputed issues of fact as to: whether a lease was orally offered in the first place; whether the agent had the authority to offer such a lease; the essential terms of the purported lease; whether the new rent checks were accepted as such; whether permanent improvements were made in reliance upon the purported lease; and whether all of the above were “unequivocally referable” to the agreement. In a declaratory judgment action, the material facts and circumstances should be fully developed before the rights of the parties are adjudicated. Here, the disputed issues of fact, unresolved by the record before us, entitled the plaintiffs-respondents to a trial on the merits. “ ‘When the facts presented in the pleadings or on a pretrial motion are not sufficient to permit a declaration for either party at that stage, the action must, of course, proceed to trial’ ” (Armstrong v County of Onondaga, 31 AD2d 735, 736, citing 3 Weinstein-Korn-Miller, NY Civ Frac, par 3001.13). Concur — Carro, J. P., Markewich, Bloom and Fein, JJ.