Chestnut Ridge Court Apartments, Inc. v. Swan Coin-O-Matic Laundry, Inc.

Judgment unanimously reversed, on the law and facts, without costs, and complaint dismissed. Memorandum: The defendant installed sets of coin-operated washing and drying machines in an apartment complex owned by the plaintiff. Unlike the arrangement in the companion action (see, Leinwand v Swan Coin-O-Matic Laundry [appeal No. 2], 115 AD2d 302), we find that each set of machines was installed, at the request and for the benefit of an individual tenant, in the basement area used by that tenant, and was connected to the utilities serving the tenant. Under the circumstances, we conclude that the part performance was not unequivocally referable to the alleged oral agreement whereby the defendant 302 was to pay the plaintiff a portion of the gross receipts from the machines. (Appeal from judgment of Supreme Court, Erie County, Feeman, J.—breach of contract.) Present—Callahan, J. P., Boomer, Green, O’Donnell and Schnepp, JJ.