Josephson LLC v Column Fin., Inc.

Josephson LLC v Column Fin., Inc. 2012 NY Slip Op 02588 Decided on April 5, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 5, 2012
Mazzarelli, J.P., Saxe, Moskowitz, Manzanet-Daniels, Román, JJ.
7303 603872/09

[*1]Josephson LLC, doing business as The Moinian Group, et al., Plaintiffs-Respondents,

v

Column Financial, Inc., et al., Defendants-Appellants, Rubicon Finance America LLC, et al., Defendants.




Cadwalader, Wickersham & Taft LLP, New York (Jason M.
Halper of counsel), for appellants.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered on or about January 5, 2011, which denied defendants Column Financial, Inc. and Credit Suisse Securities (USA) LLC's motion for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, with costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Defendants contend that the breach of contract cause of action should be dismissed because the subject contract expressly prohibits oral modifications and the alleged oral agreement is barred by the Statute of Frauds (see General Obligations Law § 15-301). Plaintiffs failed to raise an issue of fact whether there was a partial performance of the contract that would permit enforcement of the oral modification (see F. Garofalo Elec. Co. v New York Univ., 270 AD2d 76, 80-81 [2000], lv dismissed 95 NY2d 825 [2000]). The act they identify as partial performance, i.e., the delivery of the purchase price to the title company, is not "unequivocally referable" to the oral modification; it can also reasonably be regarded as preparatory to performing the contract (see e.g. Merrill Lynch Interfunding, Inc. v Argenti, 155 F3d 113, 122-123 [1998]). Further, the record demonstrates that the parties did not agree on all the material terms of the alleged oral agreement. The deposition testimony upon which plaintiffs rely reflects a mere agreement to agree (see e.g. Meyers Assoc., L.P. v Conolog Corp., 61 AD3d 547 [2009]). [*2]

Plaintiffs abandoned their remaining claims by failing to oppose the parts of defendants' motion that sought summary judgment dismissing those claims.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 5, 2012

CLERK