PASSERO v. SICILIANO (2007)

 Plaintiffs commenced this action seeking specific performance of a contract pursuant to which defendants agreed to purchase real property from them.   Supreme Court properly denied defendants' cross motion to dismiss the complaint pursuant to CPLR 3211(a)(1), (5), and (7).   The contract provided that a separate bill of sale covering specific items would be signed at the time of closing, and in support of their motion defendants contended, inter alia, that they were entitled to void the contract by refusing to execute the bill of sale.   We reject that contention.   Viewing the contract as a whole and giving effect and meaning to every term thereof (see Village of Hamburg v. American Ref-Fuel Co. of Niagara, 284 A.D.2d 85, 89, 727 N.Y.S.2d 843, lv. denied 97 N.Y.2d 603, 735 N.Y.S.2d 492, 760 N.E.2d 1288), we conclude that defendants were required pursuant to the terms of the contract to execute the bill of sale at the time of closing.   Thus, contrary to the contention of defendants, the documentary evidence submitted by them does not conclusively establish a defense to the asserted claims as a matter of law (see CPLR 3211[a][1];  Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511;  Matter of Schwaner v. Collins, 17 A.D.3d 1068, 1069, 794 N.Y.S.2d 233).   Defendants also failed to establish in support of their motion that there was a violation of the statute of frauds (see General Obligations Law § 5-703[3];  CPLR 3211[a][5] ).   Here, the “part[ies] to be charged” within the meaning of General Obligations Law § 5-703(3) are defendants, and thus “the fact that the [contract] may not have been enforcible against [plaintiff Karen Passero, who did not sign the counteroffer,] is immaterial (Real Property Law, § 259;  N.Y. Legis. Doc., 1944, No. 65 [D] )” (Fiorito v. Yaskulski, 16 A.D.2d 867, 867, 228 N.Y.S.2d 598;  cf. Ellman v. McCarty, 70 A.D.2d 150, 420 N.Y.S.2d 237).   Finally, defendants failed to establish as a matter of law that plaintiffs failed to state a cause of action because the contract is void for illegality based on plaintiffs' alleged intent to defraud taxing authorities (see CPLR 3211[a] [7];  Schwaner, 17 A.D.3d at 1069, 794 N.Y.S.2d 233;  see generally Bank Leumi Trust Co. of N.Y. v. D'Evori Intl., 163 A.D.2d 26, 31-32, 558 N.Y.S.2d 909).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: