City Streets Realty Corp. v. Wetanson

—Order and judgment (one paper), Supreme Court, New York County (Diane Lebedeff, J.), entered September 27, 1989, which inter alia granted summary judgment to defendants dismissing plaintiffs’ complaint, is unanimously affirmed, with costs payable to Resner by plaintiffs. The record establishes that plaintiffs’ complaint was properly dismissed. Defendant Wetanson assigned his interest in certain real property to defendants Resner, who in turn sold the property to a third party. While plaintiffs admittedly loaned defendant Wetanson the funds with which Wetanson acquired his interest in the property, plaintiffs’ names never appeared on either the original contract of sale or the assignment. Accordingly, plaintiffs’ assertions that they in fact had an interest in the property must fail, as insufficient facts are alleged to satisfy the requirement of General Obligations Law § 5-703 (2) that a contract for the sale of an interest in real property be evidenced by a writing executed by the party to be charged. (See, e.g., Weisner v Benenson, 275 App Div 324, affd 300 NY 669.) We also find that the Resners’ counterclaims for abuse of process, malicious prosecution and punitive damages were properly dismissed. There was no allegation of actual or special damages. Mere institution of a civil action is insufficient. (See, Allen v Murray House Owners Corp., 130 AD2d 356.) Concur—Rosenberger, J. P., Ellerin, Wallach, Smith and Rubin, JJ.