Rosenberg v Ridge St. Partners, LLC

[*1] Rosenberg v Ridge St. Partners, LLC 2005 NYSlipOp 50896(U) Decided on June 10, 2005 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 10, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT:
HON. LUCINDO SUAREZ, P.J.
HON. WILLIAM J. DAVIS
HON. MARTIN SCHOENFELD, Justices.


Kevin J. Rosenberg, 570422/04 Plaintiff-Appellant,

against

Ridge Street Partners, LLC, Defendant-Respondent.

Plaintiff appeals from an order and judgment (one paper) of the Civil Court, New York County, dated April 9, 2004 (Jeffrey K. Oing, J.) which granted defendant's motion for summary judgment dismissing the complaint.

PER CURIAM:

Order and judgment (one paper) dated April 9, 2004 (Jeffrey K. Oing, J.) affirmed, with $10 costs.

Plaintiff seeks to recover money damages based upon a claimed breach of an alleged oral agreement to enter into a two year lease for an apartment at defendant's premises. Civil Court properly awarded defendant summary judgment dismissing the complaint as plaintiff's claim was barred by the Statute of Frauds (General Obligations Law § 5-703[2]). That statute provides in pertinent part that "[a] contract for the leasing for a longer period than one year . . . 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." As Civil Court correctly determined, an agreement to enter into a lease also requires a writing (see Geraci v Jenrette, 41 NY2d 660, 664 [1977]). Nor are we persuaded that plaintiff's payment of a deposit of one month's rent constituted partial performance pursuant to General Obligations Law § 5-703 [4], sufficient to take the alleged oral contract out of the [*2]purview of General Obligations Law § 5-703[2]. Payment of money alone is insufficient to constitute part performance, but must be combined with other acts, not here present, such as taking possession of the premises or making improvements (see Tuttle, Pendelton & Gelston, Inc. v Dronart Realty Corp., 90 AD2d 830; see also H. Rothvoss & Sons, Inc. v Estate of Neer, 139 AD2d 37 [1988]; cf. Mott v Devine, 102 AD2d 946 [1984]). Moreover, General Obligations Law § 5-703 [4] relates only to the remedy of specific performance, whereas plaintiff in the within action seeks money damages exclusively. Under the demonstrated facts, plaintiff has established nothing more than an unenforceable agreement to agree (see Joseph Martin, Jr., Delicatessen, Inc. v Schumacher, 52 NY2d 105, 109 [1981]).

This constitutes the decision and order of the court.
I concur
I concur
I concur
Decision Date: June 10, 2005