Santaro v Jack of Hearts Carpet Co., Inc.

[*1] Santaro v Jack of Hearts Carpet Co., Inc. 2005 NY Slip Op 50170(U) Decided on January 19, 2005 Supreme Court, Onondaga County Carni, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 19, 2005
Supreme Court, Onondaga County

MICHAEL A SANTARO, Plaintiff

against

JACK OF HEARTS CARPET CO., INC. and ANTHONY M. DIBIASE, Defendants



02-3461



For the Plaintiff:

Fix, Spindelman, Brovitz & Goldman

By: Kenneth Alweis, Esq.

Of Counsel

For the Defendants:

Alderman Wladis, P.C.

By: Steven B. Alderman, Esq.

Of Counsel

Edward D. Carni, J.

Introduction

Defendants, Jack of Hearts Carpet Co., Inc. and Anthony DiBiase (hereinafter "defendants") bring this motion seeking an order of summary judgment pursuant to CPLR § 3212 dismissing plaintiff, Michael A. Santaro's complaint as a matter of law. Defendants' motion is grounded in defendants' assertion that the written lease agreement upon which plaintiff's complaint relies was never signed or executed by either of the defendants.

Factual Background

Anthony DiBiase is the President of Jack of Hearts Carpet Co., Inc. Michael Santaro is the owner of certain real property and improvements situated thereupon known as 6717 Manlius [*2]Center Road in the Village of East Syracuse, Onondaga County, State of New York. There is no dispute that Jack of Hearts occupied and operated a retail floor-covering sales business at the subject premises from September 17, 1997 through January 31, 2002. During such occupancy, defendants also paid plaintiff the sum of $4,500 per month as rental payments for use and occupancy of the premises. According to defendants, this monthly figure was arrived at based upon a square footage price for the property plus an estimated $8,000 per year for taxes. There is also no dispute that defendants vacated the premises and stopped paying the $4,500 per month as of March 1, 2002.

Plaintiff alleges that on September 17, 1997, the parties had entered into a written lease agreement with a term beginning on October 1, 1997 and expiring on September 30, 2007. According to plaintiff, the terms of the written lease required defendants to pay plaintiff certain "Annual Rents" in equal bi-weekly installments of each and every calendar month during the term of the lease with the exception of the first month's rent which was due on November 1, 1997. [FN1] Because plaintiff contends that defendants were obligated to pay annual rental until the term expired on September 30, 2007, plaintiff now seeks payment from defendants for the unpaid rent for the period of March 1, 2002 through the Spring of 2003 when plaintiff was able to re-let the premises.

Plaintiff also alleges that the written lease agreement required defendants to pay all real estate taxes and assessments which were assessed upon the tax parcel which contained the leased premises during the term of the lease. Plaintiff claims that defendants failed to pay such assessments that became due after March 1, 2002 and that plaintiff has been damaged thereby.

Defendants contend that Anthony DiBiase never signed a written lease in his individual capacity or on behalf of Jack of Hearts in his capacity as president of that corporation. Defendants submit a sworn affidavit, dated December 30, 2003, from Mr. DiBiase to this effect. According to Mr. DiBiase's affidavit, Jack of Hearts was a month-to-month tenant at the subject premises and no written lease of any kind was ever signed by him. Defendants raise the Statute of Frauds (GOL § 5-703 [2]) as an affirmative defense. Defendants do not dispute that Jack of Hearts vacated the premises on January 31, 2002 but assert that they properly provided plaintiff with thirty (30) days notice of the intent to vacate. The provision of this thirty-day (30) notice is [*3]not disputed by plaintiff. [FN2]

DiBiase's deposition testimony indicates that the parties undertook negotiations for the execution of a written ten-year lease. However, according to DiBiase, the lease was never signed because there were some unresolved issues that needed to be worked out (See, DiBiase EBT Tr at 14). According to Mr. DiBiase, there were discussions over these issues with plaintiff's attorney between the "beginning of 1998 towards the middle to the end of 2001" (See, DiBiase EBT Tr at 16).

There is no dispute that the plaintiff is unable to produce a signed copy of a written lease agreement which contains the aforementioned essential leasehold terms. Plaintiff has produced a document entitled "Lease Agreement," dated September 5, 1997 which, in 49 paragraphs, sets forth all of the terms and conditions ordinarily contained in a commercial lease of this nature. It includes a personal guarantee of the lease as well. However, these documents are not signed by plaintiff or defendants.

Plaintiff has produced an "Estoppel Certificate" which was signed by Anthony DiBiase, as President of Jack of Hearts, on May 29, 1998. This Estoppel Certificate is directed to a third-party, Security Mutual Life Insurance Company, and contains a number of references to the agreement between plaintiff and Jack of Hearts as to the subject premises and the "lease." Although the Estoppel Certificate indicates that the written lease agreement is attached thereto, it was not so attached. Additionally, the Estoppel Certificate reflects a lease term of October 1, 1997 through September 30, 2007.

Plaintiff has also produced a document entitled "Subordination, Nondisturbance and Attornment Agreement" dated May 29, 1998 which was signed by Anthony DiBiase as President of Jack of Hearts. This document references a lease "entered into" by Jack of Hearts on September 15, 1997. It appears from the standard form language of this document that the written lease was intended to be attached to this agreement but, again, was not.

DiBiase's affidavit also indicates that his execution of the Estoppel Certificate and the Subordination Agreement was an accommodation to plaintiff in an effort to help plaintiff with his efforts to refinance the premises at a time when plaintiff was experiencing financial difficulty. Additionally, DiBiase's affidavit states that plaintiff had promised to refer a significant amount of business to Jack of Hearts through a company (San-Gra) in which plaintiff held a controlling interest.

In an affidavit sworn to on September 29, 2004, plaintiff Michael Santaro states: "It is my [*4]recollection that the lease was signed by defendants." However, when deposed earlier in the litigation at his examination before trial, Mr. Santaro testified as follows: "Q. Do you have a specific recollection of a lease being signed between yourself and Jack of Hearts? A. I can't honestly say for sure." (Santaro EBT Tr at 17). [FN3]

A careful reading of Mr. Santaro's deposition transcript demonstrates that he testified that he does not have any recollection of where, when or who else (if anyone) was present when the lease was allegedly signed. (Santaro EBT Tr at 20).

The law is well settled that a party's affidavit in opposition to a summary judgment motion which contradicts his prior sworn testimony creates only a feigned issue of fact, and is insufficient to defeat a properly supported motion for summary judgment (Harty v Lenci, 294 AD2d 296, 298 [1st Dept 2002]; Kistoo v City of New York, 195 AD2d 403, 404 [1st Dept 1993] [IAS court improperly relied upon plaintiff's self-serving affidavit which directly contradicted her prior deposition testimony]; Rogers v City of New York Housing Auth., 298 AD2d 312 [1st Dept 2002]).

There is no dispute that Mr. Santaro cannot produce a copy of a lease signed by himself or the defendants. (Santaro EBT Tr at 19-20).

In the Spring of 2003, plaintiff leased the premises under a ten year written lease to another commercial tenant for "substantially more" rent than was being paid by defendants. (Santaro EBT Tr at 55).

The Pleadings

Plaintiff's complaint advances a cause of action seeking unspecified damages for rental payments allegedly due and owing from defendants. A second cause of action seeks additional rent, pursuant to the terms of the written lease, in the form of interest at the rate of 18% per annum for "any rent payment not timely made." [FN4] A third cause of action seeks damages for taxes and assessments incurred by plaintiff as a result of defendants' alleged failure to pay such [*5]assessments after March 1, 2002. Lastly, a fourth cause of action states that defendants made representations to plaintiff which defendants knew to be false when made. [FN5]

Defendants' answer raises the affirmative defense of the Statute of Frauds and advances two counterclaims. The first counterclaim alleges that plaintiff, as an inducement to occupy plaintiff's premises, promised defendants that he would purchase approximately $500,000 worth of floor covering material from defendants through a company known as San-gra in which plaintiff had a controlling interest. Defendants allege that plaintiff breached that promise.

Defendants' second counterclaim alleges that plaintiff failed to construct an island suitable for the erection of a sign advertising defendants' business at the subject premises and that defendants were damaged thereby.

Except to the extent that the factual information surrounding these counterclaims overlaps with the defendants' motion to dismiss plaintiff's complaint, defendants' counterclaims are not in issue in this motion.

The Statute of Frauds

Defendants have submitted the sworn affidavit of Mr. DiBiase that denies the execution of any written lease on behalf of the defendants and points out that plaintiff has not been able to produce a signed lease agreement at any stage of the litigation. The only written lease document produced by plaintiff was not signed by either party. The court finds that this evidence sufficiently shifts the burden to plaintiff to come forward with evidence in admissible form to raise a material question of fact to defeat summary judgment (See generally, Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Being unable to produce a signed written lease for a ten-year term, and being unable to "honestly say for sure" that the written lease was ever signed, plaintiff is faced with defendants' affirmative defense that his claim of a ten-year lease term is barred by the Statute of Frauds.

Section 5-703 of New York General Obligations Law, Conveyances and contracts concerning real property required to be in writing, states, in pertinent part, as follows: "1. An estate or interest in real property, other than a lease for a term not exceeding one year, . . . cannot be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, [*6]subscribed by the person creating, granting, assigning, surrendering or declaring the same, or by his lawful agent, thereunto authorized by writing." (Emphasis supplied)."2. A contract for the leasing for a longer period than one year, or for the sale, of any real property, or an interest therein, 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 his lawful agent thereunto authorized in writing." (Emphasis supplied).

**** "4. Nothing contained in this section abridges the powers of courts of equity to compel the specific performance of agreements in cases of part performance."

Defendants urge that plaintiff's claims are barred by the Statute of Frauds because the written lease agreement advanced by plaintiff is not signed by either party and the Estoppel Certificate and Subordination Agreement do not contain the terms essential to the formation of a binding lease agreement. Furthermore, defendants argue that even if these documents could be construed as a lease, there was no "delivery" sufficient to sustain an enforcement action.

In opposition, the plaintiff argues that defendants have "ratified" the written agreement. In support of this "ratification" theory, plaintiff calls the court's attention to Stauss v Title Guarantee and Trust Co., 284 NY 41 [1940]. Stauss involved a mother who had invested $6,000 in three mortgage certificates based upon a representation by the defendant that the real property encumbered by the mortgage instruments was improved with buildings. Nine years later, after discovering that the real property was unimproved, the plaintiff in Stauss sought to rescind the transaction. In denying plaintiff such rescission, the Stauss court found that the delay by the plaintiff of more than two years in restoring to the defendant or tendering the certificates and the interest received thereupon defeated her right to recovery under a rescission theory (Stauss, 284 NY at 47).

When discussing the conduct of the plaintiff which defeated her right to recovery, the Stauss court stated: "The right of a party to a sale to avoid the transaction for fraud or misrepresentation is conditioned upon an offer, made promptly after acquiring knowledge thereof, to return the subject-matter of the sale and any avails therefrom (Cf. American Law Institute, Restatement of the Law of Contracts, § 480)."

For reasons that are obvious from the text, the factual context and the holding in Stauss, this court finds the Stauss decision to be inapplicable and of no persuasive value in opposing [*7]defendants' motion.

Plaintiff also relies upon Kearns v Manufacturers Hanover Trust Co., 51 Misc 2d 34 [Sup Ct Suffolk Co 1966] in support of its ratification theory. In Kearns, the plaintiff widow brought an action to compel the determination of a claim to real property pursuant to Article 15 of the Real Property Actions and Proceedings Law. The widow claimed that a deed conveying out her interest, as a tenant by the entirety, in the family summer home was a forgery and that she remained the surviving tenant after her husband's death. The grantee of the allegedly forged deed raised the defense of "ratification." In dismissing the ratification defense set up by the grantee of the forged deed, the Kearns court stated that "A ratification presupposes an unauthorized act on behalf of someone else, which that person later authorizes or ratifies" (Kearns, 51 Misc 2d at 40, citing Mardan Constr. Corp. v Rogers Auto Sales Corp., 13 Misc 2d 196, 198]). In other words, there must first be an unauthorized act by a third party, subsequent knowledge of the unauthorized act by the party to be charged and the subsequent placing of a stamp of approval on the unauthorized act by the party to be charged.

Setting aside the point that this court is not bound by a decision from the Supreme Court of Suffolk County, the Kearns decision lays out a factual scenario and a legal analysis which are not related to the facts and legal issues at hand in this action. "It is hornbook law that a contract entered into by an infant or by an unauthorized agent, corporate officer, trustee or other person purporting to act in a representative capacity, or obtained as the result of a mistake is voidable" (Leasing Service Corp. v Vita Italian Restaurant, Inc., 171 AD2d 926, 927 [3rd Dept 1991], citing 66 NY Jur2d, Infants and Other Persons under Legal Disability, § § 7, 50-51, at 189-190, 237-238; 57 NYJur2d, Estoppel, Ratification and Waiver, § 76, at 107-109; 21 NYJur2d, Contracts, § § 124, 130, at 531, 537). Such a party will be deemed to have ratified the contract, however, by failing to timely disaffirm or repudiate the contract or by acts consistent with an intent to be bound following discovery of the true facts or at the end of the disability (Leasing Services, 171 AD2d at 927, citing 21 NYJur2d, Contracts, § § 124, 130, at 531, 537).

The doctrine of ratification presupposes the existence of a contract which by all appearances is valid and binding but which a party may avoid or disaffirm because of legal incapacity, lack of authority, or the party's unwillingness or absence of intent to enter into it on the terms stated (Leasing Services, 171 AD2d at 927). Here, there is no signed contract by either party as part of the record before the court. In Leasing Services, the jury determined that the defendant did not sign the lease in question. Moreover, in Leasing Services, as in this case, there was no proof in the record that the contract was signed by any agent, officer or other person acting actually or apparently on defendants' behalf. Thus, there was no contract capable of being ratified (Leasing Services, 171 AD2d at 928) and the court finds that the doctrine of ratification has no application to the facts of this case.

Part Performance

The court notes that the defendants have called the court's attention to a legal theory [*8]involving the doctrine of "part performance." (See, Defendants' Memorandum of Law at fn 2). Although not raised by plaintiff, defendants argue that this theory, even if advanced by plaintiff, is not available to plaintiff under the evidence in the record to overcome defendants' Statute of Frauds defense.

It is long settled under New York's Statute of Frauds that an oral agreement to convey an estate or interest in real property, other than a lease for term not exceeding one year, is "nugatory and unenforceable" and "[a] party to the agreement may legally and rightfully refuse to recognize or perform it" (Messner Vetere Inc. v Aegis Group LLC, 93 NY2d 229, 235 [1999], quoting Woolley v Stewart, 222 NY 347, 350-351; General Obligations Law § 5-703).

A party may, however, lose the benefit of the defense of the Statute of Frauds, or "waive its protection, by inducing or permitting without remonstrance another party to the agreement to do acts, pursuant to and in reliance upon the agreement, to such an extent and so substantial in quality as to irremediably alter [the] situation and make the interposition of the statute against performance a fraud" (Messner, 93 NY2d at 235, quoting Woolley, supra at 351).

Codified in New York's General Obligations Law, section 5-703 (4), the doctrine of part performance is based upon principles of equity, and, specifically recognition of the fact that it would be a fraud to allow one party to a real estate transaction to escape performance after permitting the other party to perform in reliance on the agreement (Messner, 93 NY2d at 235, citing Walter v Hoffman, 267 NY 365; McKinley v Hessen, 202 NY 24). Part performance alone, of course, is not sufficient. The performance must be unequivocally referable to the agreement (Messner, 93 NY2d at 235, citing Burns v McCormick, 233 NY 232; Woolley v Stewart, supra, at 351). Because the doctrine of part performance is based upon the equitable principle that it would be a fraud to allow one party, insisting on the Statute, to escape performance after permitting the other party, acting in reliance, to substantially perform, the acts of part performance must have been those of the party insisting on the contract, not those of the party insisting on the Statute of Frauds (Messner, 93 NY2d at 237, citing McKinley v Hessen, 202 NY 24).

Unequivocally Referable

In analyzing the nature of the performance sufficient to overcome the Statute of Frauds, there must be performance "unequivocally referable" to the alleged agreement, performance which alone and without the aid of words of promise is unintelligible or at least extraordinary unless unequivocally referable to the alleged agreement. An act which admits to explanation without reference to the alleged contract or a contract of the same general nature and purpose is not, in general, admitted to constitute part performance (See, Christou v Christou, 109 AD2d 1058 [4th Dept 1985], citing Burns v McCormick, 233 NY 230, 232 [1922], quoting Woolley v Stewart, 222 NY 347 [1918]). As Justice Cardozo stated in Burns v McCormick, supra: "What is done must itself supply the key to what is promised. It is not enough that what is promised may give significance to what is done." (Burns v McCormick, [*9]222 NY at 232).

Christou provides an example of what the phrase "unequivocally referable" means in a practical sense. In Christou, the plaintiff attempted to assert an oral agreement for the conveyance of a parcel of real property and the defendant owner raised the defense of the Statute of Frauds. The plaintiff had been paying the full amount of the existing mortgage lien obligation and the real estate taxes. In rejecting this part performance as insufficient to overcome the Statute of Frauds, the Fourth Department stated: "Although this alleged part performance might be consistent with an agreement to convey [the real property], it is not unequivocally so. It is equally consistent with a landlord-tenant relationship, and the payment of taxes and the mortgage could be considered rent for the premises." (Christou, 109 AD2d at 1058).

In light of the foregoing, the court here has carefully reviewed the record to ascertain, what acts, if any, of performance by plaintiff unequivocally referable to the written agreement support an inference or raise a material question of fact on the issue of whether plaintiff may avoid the dispositive effect of the Statute of Frauds under the doctrine of part performance. [FN6]

It is clear that the plaintiff has focused on the fact that Jack of Hearts actually occupied the premises, paid rent in the amount and at the bi-weekly intervals set forth in the unsigned written lease document. While these acts of part performance may be consistent with the terms of the unsigned written lease, they are equally consistent with the defendants' version of the agreement being one of a month-to-month tenancy. While the court is mindful that defendant DiBiase executed the Estoppel Certificate and Subordination Agreement, these documents are missing essential terms of the unsigned written lease, do not contain as an attachment the unsigned written lease and their execution is not inconsistent with a tenant occupying the premises on a month-to-month basis.

Furthermore, while there is no dispute that these acts took place, they are all the acts of the defendants, not the plaintiff as the party insisting on the unsigned written lease agreement (See, Messner, 93 NY2d at 237). Accordingly, they have no impact on the issue of whether there has been part performance so as to avoid the Statute of Frauds.

Plaintiff also alleges that, in reliance upon the ten-year term of the unsigned written lease, [*10]he made $350,000 to $400,000 worth of improvements to the premises. [FN7] Accepting this as true, the court turns to the unsigned written lease to determine if this conduct is "unequivocally referable" to the unsigned written lease. The unsigned written lease document is silent as to any construction, improvement or renovation of the premises to accommodate, facilitate or accomplish defendants' occupancy or tenancy of the premises for a ten-year term. There is no information as to a "build-out" or other improvement of the premises for defendants' tenancy. The nature of the improvement of the subject building, on the record submitted by plaintiff, is not inconsistent with the tenant's version of a month-to-month tenancy. It is equally plausible that the landlord renovated or improved the premises to accommodate a continuous series of month-to-month type tenancies without regard to the defendants' specific needs. Plaintiff has not submitted any description of the improvements to demonstrate that the improvements were unique to this particular tenant as compared to a general effort to make the premises suitable for general commercial retail occupation without regard to a particular use. As such, the court finds that the record submitted by the plaintiff is insufficient to support a finding that the sums expended by plaintiff for construction at the premises were "unequivocally referable" to the unsigned written lease document.

Defendants correctly point out that the application of the doctrine of part performance, by the express terms of the statute, is limited to courts of equity. [FN8] This action is plead as one at law and seeks only money damages without any cause of action or prayer for equitable relief. As such, the doctrine of part performance is unavailable to the plaintiff in this action at law (Farash v Sykes Datatronics, Inc., 90 AD2d 965 [4th Dept 1982] [The equitable claim of part performance cannot be applied in an action at law], aff'd and mod on other grounds 59 NY2d 500 [1983]). [FN9]

The Estoppel Certificate and Subordination Agreement

The court has reviewed the Estoppel Certificate and the Subordination Agreement, both individually and collectively, to determine if those documents constitute a "note or memorandum" sufficient to satisfy the terms of the Statute of Frauds. Suffice it to say that neither [*11]of these documents contains the amount of rental to be paid for the rental of the premises, such term being essential, as a matter of law, to create an enforceable lease agreement (Gotham Food Group Enterprises, Inc. v Principal Mutual Life Ins., 267 AD2d 48 [1st Dept 1999]; Rouzani v Rapp, 203 AD2d 446 [2nd Dept 1994]). Therefore, these two documents, either individually or when read together, cannot form the basis of a note or memorandum sufficient to satisfy the type of writing provided for in General Obligations Law § 5-703.

Delivery

Lastly, defendants argue that there was no delivery of a signed lease which would make the lease agreement enforceable (219 Broadway Corp. v Alexanders, Inc., 46 NY2d 506, 512 [1979]). The absence of delivery renders the lease ineffective as a matter of law (219 Broadway, 46 NY2d at 511) and here, as a matter of contract since the written lease requires, by its express terms in ¶ 36, delivery to be binding. There is no proof or allegation of delivery.

Conclusion

Having made the foregoing findings, the court turns to the causes of action set forth in plaintiff's complaint to determine if one or more is capable of overcoming the bar of the Statute of Frauds. Plaintiff's first, second and third causes of action sound in breach of the written lease agreement and they therefore are not sustainable in the face of the Statute of Frauds as a matter of law. Accordingly, defendants' motion for summary judgment addressed to these three causes of action is granted and plaintiff's first, second and third causes of action are dismissed in their entirety.

Plaintiff's fourth cause of action alleges that defendants represented to plaintiff that they intended to be bound by the terms of the Lease Agreement; those representations were false when made; defendants knew them to be false when made; and plaintiff relied thereupon. This is essentially a claim sounding in fraud. It is well settled that a party cannot avoid the bar of the Statute of Frauds by recharacterizing the claim as one for fraud (Gora v Drizin, 300 AD2d 139, 140 [1st Dept 2002] [oral contract claim barred by GOL § 5-703 (3) and plaintiff not permitted to avoid this bar by "recharacterizing" the claim as one for fraud]; General Obligations Law § 5-703 ). Plaintiff cannot avoid the Statute of Frauds by arguing that the alleged oral promise was a misrepresentation of fact and that its claim is based on fraud (Nelson Bagel Bakery Co., Inc v Moshcorn Realty Corporation, 289 AD2d 69 [1st Dept 2001]). Where a contract itself is void under the Statute of Frauds it cannot be used as a predicate for an action in fraud (Lilling v Slauenwhite, 145 AD2d 471, 472 [2nd Dept 1988], citing Dung v Parker, 52 NY 494 [1873 ]). "Whatever the form of the action at law may be, if the proof of a promise or contract, void by the [S]tatute [of Frauds] is essential to maintain it, there can be no recovery" (Dung v Parker, supra, at 497).

Accordingly, the court finds that plaintiff's fourth cause of action is not sustainable as a matter of law. Defendants' motion for summary judgment addressed to this cause of action is [*12]granted and it is therefore dismissed in its entirety.

This constitutes the decision of the Court. Defendants' counsel to submit proposed order on notice.

ENTER

DATED: January ____, 2005___________________________

HON. EDWARD D. CARNI, J.S.C. Footnotes

Footnote 1: More accurately, the written lease was drafted as one between Jack of Hearts Carpet Co., Inc. and plaintiff. Defendant Anthony M. DiBiase was not identified as a "tenant" under the lease. Instead, there was a written "Guaranty of Lease" form attached to the lease which contained a signature line for "Anthony DiBias[i]." This form also was not signed. Plaintiff has not plead a separate cause of action against Anthony DiBiase for breach or enforcement of the Guaranty of Lease. Rather, Anthony DiBiase is grouped, collectively, with Jack of Hearts in the category of "defendants" in all four of plaintiff's causes of action, all of which concern the alleged failure by defendants to adhere to the terms of the unsigned written lease.

Footnote 2: It is noteworthy that ¶ 36, When Lease Becomes Binding, of the unsigned written lease agreement states: "The submission of this document for examination and negotiation does not constitute an offer to lease or an option to lease the Premises, and this document shall become effective and binding only upon the delivery and execution hereof by Landlord and Tenant."

Footnote 3: It is well settled that a party may not submit an affidavit in opposition to a summary judgment motion that contradicts prior testimony given at an examination before trial (See, Rogers v City of New York Housing Auth., 298 AD2d 312 [1st Dept 2002]).

Footnote 4: There is no alternative claim in the complaint that defendants owe any past due rent under a month-to-month tenancy or that the defendants failed to provide adequate notice of intent to vacate.

Footnote 5: It is not clear from plaintiff's complaint whether the theory of liability against Anthony DiBiase in his individual capacity is based upon the unsigned "Guaranty of Lease" form attached to the unsigned written lease or whether it is based upon a contention that Mr. DiBiase is personally and individually bound by the terms of the written lease. Notwithstanding this limitation, the court will treat the complaint liberally and give plaintiff the benefit of every reasonable inference as the party opposing summary judgment.

Footnote 6: It should be noted that plaintiff's opposition papers do not raise or address the issue of part performance. Instead, plaintiff has characterized the position as one of "ratification" and has focused on the performance of defendants. Insofar as the Statute of Frauds is concerned, this approach is directly contradictory to the holding in Messner, supra. Nonetheless, this court has a duty, independent of a party's selection and advancement of a particular legal theory, to search the record and perform the required function of issue finding in this summary judgment context.

Footnote 7: See Santaro EBT Tr at 20.

Footnote 8: GOL § 5-703 [4] states: "Nothing contained in this section abridges the powers of courts of equity to compel the specific performance of agreements in cases of part performance." (Emphasis supplied).

Footnote 9: In Farash, the Court of Appeals modified the Appellate Division, Fourth Department's decision and reinstated the plaintiff-landlord's cause of action seeking recovery for the value of work performed by plaintiff in reliance upon statements by and at the request of defendant and held this claim not barred by the Statute of Frauds. The application of the Statute of Frauds to plaintiff's other causes of action seeking to enforce an oral lease agreement for a term in excess of one year was affirmed by the Court of Appeals. Here, plaintiff has not advanced a cause of action seeking recovery for the value of work performed at the defendants' request.