CARLTON CENTER LLC v. CARLTON NURSING HOME INC

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Supreme Court, Appellate Division, Second Department, New York.

CARLTON CENTER, LLC, et al., Appellants, v. CARLTON NURSING HOME, INC., Respondent.

Decided: March 31, 2003

GABRIEL M. KRAUSMAN, J.P., SANDRA L. TOWNES, WILLIAM F. MASTRO and REINALDO E. RIVERA, JJ. Goldberg Cohn & Richter, LLP, Brooklyn, N.Y. (Elliott S. Martin of counsel), for appellants. Hoffinger, Stern & Ross, LLP, New York, N.Y. (Jack S. Hoffinger and John McConnell of counsel), for respondent.

In an action, inter alia, for specific performance of a contract for the sale of real property, the plaintiffs appeal from so much of an order of the Supreme Court, Kings County (Harkavy, J.), dated January 31, 2002, as granted the defendant's motion pursuant to CPLR 3211 to dismiss the complaint on the ground that it is barred by the statute of frauds.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The Supreme Court properly determined that the subject draft agreement was unenforceable under the statute of frauds (see General Obligations Law § 5-703 [2] ).   Contrary to the plaintiffs' contention, there is nothing in the record to indicate that the defendant, through words or conduct, ratified the draft agreement.   The retention of the plaintiffs' down payment for approximately three months in an interest-bearing escrow account is insufficient to constitute an implied ratification (see Papakostas v. Harkins, 168 A.D.2d 547, 563 N.Y.S.2d 96), or to support the plaintiffs' claim that the defendant should be estopped from reneging on its alleged promises (see F.B. Tr. Rd. Corp. v. DRT Constr. Co., 241 A.D.2d 930, 661 N.Y.S.2d 367;  Papakostas v. Harkins, supra).

 Equally unavailing is the plaintiffs' argument that their act of making a substantial down payment constituted part performance of the draft agreement so as to take the agreement outside the statute of frauds (see Bordeau v. Oakley, 185 A.D.2d 417, 419, 585 N.Y.S.2d 623;  H. Rothvoss & Sons v. Estate of Neer, 139 A.D.2d 37, 530 N.Y.S.2d 331;  Tuttle, Pendelton & Gelston v. Dronart Realty Corp., 90 A.D.2d 830, 455 N.Y.S.2d 830).

The plaintiffs' remaining contentions are without merit.

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