| Tikvah Realty, LLC v Schwartz |
| 2007 NY Slip Op 06665 [43 AD3d 909] |
| September 11, 2007 |
| Appellate Division, Second Department |
| Tikvah Realty, LLC, Appellant, v Stanley Schwartz,Respondent. |
—[*1]
In an action to compel specific performance of a contract for the sale of real property, theplaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, KingsCounty (F. Rivera, J.), dated May 12, 2006, as granted the defendant's motion for summaryjudgment dismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
In early 2005 the plaintiff and the defendant entered into negotiations for the sale of realproperty owned by the defendant. Although one of the plaintiff's principals signed a proposedcontract at the office of the defendant's son, who was acting as the defendant's attorney, thedefendant never executed the contract. After the defendant decided to sell the property to a thirdparty, the plaintiff commenced this action seeking to compel specific performance of theproposed contract.
Contrary to the plaintiff's contention, the Supreme Court properly granted the defendant'smotion for summary judgment dismissing the complaint. The defendant established his primafacie entitlement to judgment as a matter of law by demonstrating that he never signed theproposed contract (see General Obligations Law § 5-703 [1]; Carlton Ctr. vCarlton Nursing Home, [*2]303 AD2d 706 [2003];Donaldson Acoustics Co. v NAB Constr. Corp., 273 AD2d 192 [2000]). In opposition tothe motion, the plaintiff failed to raise a triable issue of fact. Whether the defendant's son had theauthority to bind the defendant is not relevant to the instant dispute, as the plaintiff concedes thatthe defendant's son did not sign the proposed contract in the first instance. Furthermore, theplaintiff's tender of a down payment upon signing the proposed contract, standing alone, did notconstitute part performance which would take an oral agreement for the sale outside the statute offrauds (see Carlton Ctr. v Carlton Nursing Home, supra; Francesconi v Nutter,125 AD2d 363 [1986]).
The plaintiff's remaining contention s are without merit. Schmidt, J.P., Santucci, Krausmanand Balkin, JJ., concur.