EHRENREICH v. ISRAEL (2020)

DECISION & ORDER

In an action, inter alia, for specific performance of a contract for the sale of real property and to recover damages for breach of contract, the defendants appeal from (1) an order of the Supreme Court, Kings County (Sylvia G. Ash, J.), dated July 2, 2018, and (2) an order of the same court dated August 1, 2018.  The order dated July 2, 2018, denied the defendants' motion to cancel a notice of pendency.  The order dated August 1, 2018, denied the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint.

ORDERED that the orders are reversed, on the law, with costs, the defendants' motion to cancel the notice of pendency is granted, the Kings County Clerk is directed to cancel the notice of pendency dated March 6, 2018, and the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint is granted.

The plaintiff and his father allegedly partnered with the defendants Joel Israel, Amrom Israel, and Michael Israel in various real estate ventures over a period of several years, and a dispute allegedly arose between the parties.  As a result, the parties entered into a written settlement agreement (hereinafter the alleged contract) executed by the plaintiff, Joel, and Amrom providing, inter alia, that Joel and Amrom would sell to the plaintiff certain parcels of real property to settle the dispute.  The defendants thereafter allegedly reneged on the alleged contract and the plaintiff commenced the instant action for specific performance, to recover damages for breach of contract, for a judgment declaring that the defendants willfully breached the alleged contract, and for the imposition of a vendee's lien.  The plaintiff also filed a notice of pendency against the properties the defendants allegedly contracted to convey.  Thereafter, the defendants moved to cancel the notice of pendency and pursuant to CPLR 3211(a) to dismiss the complaint.  By orders dated July 2, 2018, and August 1, 2018, respectively, the Supreme Court denied both motions.  The defendants appeal.

We agree with the defendants that the causes of action in the complaint, all of which are based on the alleged contract, are barred by the statute of frauds.  “Pursuant to General Obligations Law § 5–703(2), a contract for the sale of real property ‘is void unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged, or by his lawful agent thereunto authorized by writing’ ” (Makris v. Boylan, 175 A.D.3d 1400, 1401, 109 N.Y.S.3d 134).  “A writing satisfies the statute of frauds if it identifies the parties to the transaction, describes the properties to be sold with sufficient particularity, states the purchase price and the down payment required, and is subscribed by the party to be charged” (id. at 1401, 109 N.Y.S.3d 134;  see 443 Jefferson Holdings, LLC v. Sosa, 174 A.D.3d 486, 487, 104 N.Y.S.3d 199).  Moreover, “ ‘a memorandum evidencing a contract and subscribed by the party to be charged must designate the parties, identify and describe the subject matter, and state all of the essential terms of a complete agreement ’ ” (Nesbitt v. Penalver, 40 A.D.3d 596, 597, 835 N.Y.S.2d 426, quoting Walentas v. 35–45 Front St. Co., 20 A.D.3d 473, 474, 797 N.Y.S.2d 908).  “In a real estate transaction, the essential terms of a contract typically include the purchase price, the time and terms of payment, the required financing, the closing date, the quality of title to be conveyed, the risk of loss during the sale period, and adjustments for taxes and utilities” (443 Jefferson Holdings, LLC v. Sosa, 174 A.D.3d at 487, 104 N.Y.S.3d 199;  see Saul v. Vidokle, 151 A.D.3d 780, 781, 56 N.Y.S.3d 230).

Here, the alleged contract did not satisfy the statute of frauds, as it did not contain the essential terms typically included in a contract for the sale of real property, including the purchase price, the time and terms of payment, the required financing, the closing date, the risk of loss during the sale period, and adjustments for taxes and utilities (see Nesbitt v. Penalver, 40 A.D.3d at 597, 835 N.Y.S.2d 426).  Additionally, the alleged contract was not signed by the defendant Michael Israel, and it indicated that several of the properties were co-owned by other individuals who also were not signatories to the document (see 443 Jefferson Holdings, LLC v. Sosa, 174 A.D.3d at 488, 104 N.Y.S.3d 199).

Further, the emails relied upon by the plaintiff to demonstrate that the parties reached a complete agreement were between the parties' attorneys, and there was neither an allegation in the complaint nor any evidence in the record that the attorneys were authorized in writing to bind the parties to a contract of sale (see General Obligations Law § 5–703[2];  42nd Ave. Commons, LLC v. Barracuda, LLC, 140 A.D.3d 1012, 1013, 35 N.Y.S.3d 366).  Moreover, the deeds relied upon by the plaintiff purported to convey the properties between corporate entities not identified in the contract (see Ross v. Wu, 27 A.D.3d 237, 237, 811 N.Y.S.2d 26;  RAJ Acquisition Corp. v. Atamanuk, 272 A.D.2d 164, 164, 710 N.Y.S.2d 21), and the plaintiff admittedly rejected the deeds “pending a further agreement” on the purchase price and quality of title.  Therefore, the deeds, when viewed together with the alleged contract, did not evidence a complete agreement between the parties (see Nesbitt v. Penalver, 40 A.D.3d at 598–599, 835 N.Y.S.2d 426;  Dutchess Dev. Co. v. Jo–Jam Estates, 134 A.D.2d 478, 479, 521 N.Y.S.2d 262).  Furthermore, the plaintiff's allegations that he partially performed under the contract are insufficient to remove the agreement from the statute, since the conduct relied on was not unequivocally referable to the alleged agreement (see Barretti v. Detore, 95 A.D.3d 803, 806–807, 944 N.Y.S.2d 166;  Bowman v. Di Placidi, 27 A.D.3d 259, 260, 811 N.Y.S.2d 638).  Accordingly, the Supreme Court should have granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint.

Inasmuch as there was no binding contract for the conveyance of real property between the parties, the defendants' motion to cancel the notice of pendency pertaining to the properties also should have been granted (see CPLR 6514;  Saul v. Vidokle, 151 A.D.3d at 781, 56 N.Y.S.3d 230).

In light of the foregoing determination, we do not reach the parties' remaining contentions.

MASTRO, J.P., MILLER, MALTESE and BRATHWAITE NELSON, JJ., concur.