Farash v. Sykes Datatronics, Inc.

Order reversed, with costs, and defendant’s motion granted. Memorandum: Defendant appeals from the denial of its summary judgment motion in an action for money damages in the amount of $1,550,000 based upon breach of an oral lease. Defendant allegedly agreed to rent premises known as the Neisner Building located at 49 East Avenue, Rochester, New York, from plaintiff. Plaintiff contends that an oral agreement was reached on all material terms and conditions of the lease. Defendant, however, has raised the Statute of Frauds as a defense to the action since the lease was to be for a term exceeding one year (General Obligations Law, § 5-703, subd 2). In response to this defense, plaintiff contends that his partial performance, consisting of renovation and repair of the building in accordance with defendant’s specifications, was sufficient to invoke subdivision 4 of section 5-703 of the General Obligations Law which provides: “Nothing contained in [the Statute of Frauds] abridges the powers of courts of equity to compel the specific performance of agreements in cases of part performance.” Although there may be questions of fact concerning whether an oral agreement was reached and whether plaintiff’s actions were unequivocally referable to the oral agreement, they need not be resolved since they relate to plaintiff’s claim of part performance. The equitable claim of part performance cannot be applied in an action at law (Mihalko v Blood, 86 AD2d 723; see, also, Baldwin v Palmer, 10 NY 232; Longo v Shaker Hgts. Dev., 11 Misc 2d 278; General Obligations Law, § 5-703, subd 4). Therefore, even if plaintiff could prove that an oral agreement had been reached, the Statute of Frauds would render this agreement void. All concur, except Hancock, Jr., J. P., and Callahan, J., who dissent in part, in the following memorandum.