Pennino v. Lasersurge Inc.

— Order unanimously re [940] versed on the law without costs, motion denied and first and second causes of action reinstated. Memorandum: Supreme Court erred in granting defendants partial summary judgment dismissing plaintiffs first and second causes of action. In the first cause of action plaintiff seeks a declaration that he is owner of 5% of defendant Lasersurge, Inc. In the second cause of action plaintiff seeks to compel specific performance of the issuance of 5% of the corporate stock. Although there is no written agreement in support of those causes of action, there is a question of fact whether plaintiffs payment by check to defendant Sauer of $2,250 for one share of Lasersurge, Inc. and plaintiff’s intention to purchase an additional four shares is sufficient to avoid the Statute of Frauds (see, UCC 8-319 [b]; Palmerton v Envirogas, Inc., 80 AD2d 996, 997; APS Food Sys. v Ward Foods, 70 AD2d 483). The order in the second appeal, denying plaintiffs motion to reargue, is not appealable (see, Gifaldi v Dumont Co., 172 AD2d 1025; Empire Ins. Co. v Food City, 167 AD2d 983). (Appeal from Order of Supreme Court, Monroe County, Curran, J. — Dismiss Complaint.) Present— Callahan, J. P., Boomer, Green, Lawton and Davis, JJ.