Rechais v McGivans

Rechais v McGivans 2014 NY Slip Op 05169 Decided on July 9, 2014 Appellate Division, Second 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 July 9, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
JOHN M. LEVENTHAL
PLUMMER E. LOTT
ROBERT J. MILLER, JJ.
2013-05422
(Index No. 64101/12)

[*1]H. Anthony Rechais, appellant,

v

Marjorie McGivans, respondent.

Evan Inlaw, Yonkers, N.Y., for appellant.

Andree Sylvestre-Johnson, Brooklyn, N.Y., for respondent.

DECISION & ORDER

In an action to recover damages for breach of contract, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Giacomo, J.), entered April 5, 2013, as granted that branch of the defendant's cross motion which was for summary judgment dismissing the complaint.

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

The plaintiff commenced this action to recover damages for breach of an alleged oral contract to convey an interest in real property. The Supreme Court properly granted that branch of the defendant's cross motion which was for summary judgment dismissing the complaint. The defendant established, prima facie, that the action was barred by the statute of frauds (see General Obligations Law § 5-703[1]). In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, the part performance exception to the statute of frauds is inapplicable, as the plaintiff's alleged actions were not "unequivocally referable" to the alleged oral agreement (Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229, 235; see Anostario v Vicinanzo, 59 NY2d 662, 664; Burns v McCormick, 233 NY 230, 232).

In light of our determination, we need not reach the plaintiff's remaining contentions.

MASTRO, J.P., LEVENTHAL, LOTT and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court