| Pinkava v Yurkiw |
| 2009 NY Slip Op 05953 [64 AD3d 690] |
| July 21, 2009 |
| Appellate Division, Second Department |
| Steven G. Pinkava et al., Respondents, v Anna Yurkiw etal., Appellants. |
—[*1] Capell & Vishnick, LLP, Lake Success, N.Y. (Michael J. Stacchini of counsel), forrespondents.
In an action, inter alia, for specific performance of an oral agreement to convey an interest inreal property, the defendants appeal from an order of the Supreme Court, Queens County (Dorsa,J.), entered January 15, 2008, which denied their motion, in effect, to dismiss the first cause ofaction pursuant to CPLR 3211 (a) (7), for summary judgment dismissing the second throughtwelfth causes of action on the ground that they were barred by the statute of frauds, and forsummary judgment on the counterclaims.
Ordered that the order is affirmed, with costs.
The plaintiff Sofia Pinkava and the defendant Anna Yurkiw are sisters. In May 1968 Sofiaand her husband, the plaintiff Steven G. Pinkava (hereinafter together the Pinkavas), entered intoa joint venture with Anna and her late husband George Yurkiw (hereinafter together theYurkiws), to purchase and manage an apartment building for profit. In May 1968 the Pinkavasand the Yurkiws together purchased an apartment building located in Astoria, Queens. Eachcouple had a one-half ownership interest in the property. The Pinkavas and the Yurkiwsmanaged the building and shared in the profits derived from rents. Neither couple resided in thebuilding.
The Pinkavas claim that in January 1998 they entered into an oral agreement with theYurkiws whereby they would pay the Yurkiws in the sum of $150,000 over time for their interestin the property and would manage the building alone while paying off the purchase price. ThePinkavas allegedly paid the Yurkiws a total of $51,000. In December 2002 George Yurkiw died.Thereafter, the Pinkavas allegedly offered to pay Anna the balance of the purchase price, but shewould not accept the money until she located her late husband's paperwork showing the balanceowed by the Pinkavas. In May 2006 Anna provided the Pinkavas with a handwritten documentprepared by her late husband that allegedly showed a balance due of $99,000. In reliance, thePinkavas claim that they ordered a title search and tendered a bank check in that amount toAnna. Anna, however, refused to accept it and the Pinkavas subsequently learned that on July 6,2006 Anna conveyed her interest in the property to her son, the defendant Mark Yurkiw. Theplaintiffs then commenced this action seeking, among other things, to set aside the conveyanceto Mark, to impose a constructive trust upon the Yurkiws' interest in the property, and forspecific performance [*2]of the oral agreement. The defendantsinterposed counterclaims for, inter alia, the partition and sale of the property and an accounting.
The Supreme Court denied the defendants' motion, in effect, to dismiss the first cause ofaction pursuant to CPLR 3211 (a) (7), for summary judgment dismissing the second throughtwelfth causes of action on the ground that they were barred by the statute of frauds, and forsummary judgment on the counterclaims. We affirm.
The statute of frauds prohibits the conveyance of real property without a written contract(see General Obligations Law § 5-703 [1]). While the statute of frauds empowerscourts of equity to compel specific performance of agreements in cases of part performance(see General Obligations Law § 5-703 [4]), the claimed partial performance "mustbe unequivocally referable to the agreement" (Messner Vetere Berger McNamee SchmettererEuro RSCG v Aegis Group, 93 NY2d 229, 235 [1999]; Luft v Luft, 52 AD3d 479, 481 [2008]). It is not sufficient that theoral agreement gives significance to the plaintiff's actions. Rather, the actions alone must be "'unintelligible or at least extraordinary,' [and] explainable only with reference to the oralagreement" (Anostario v Vicinanzo, 59 NY2d 662, 664 [1983], quoting Burns vMcCormick, 233 NY 230, 232 [1922]; see Adelman v Rackis, 212 AD2d 559, 561[1995]). Significantly, the doctrine of part performance "is based on principles of equity, inparticular, recognition of the fact that the purpose of the Statute of Frauds is to prevent frauds,not to enable a party to perpetrate a fraud by using the statute as a sword rather than a shield"(Nicolaides v Nicolaides, 173 AD2d 448, 449-450 [1991]; see Scutti Enters. vWackerman Guchone Custom Bldrs., 153 AD2d 83, 87 [1989]).
Here, in response to the defendants' prima facie showing that enforcement of the alleged oralagreement was barred by the statute of frauds (see generally Alvarez v Prospect Hosp.,68 NY2d 320, 324 [1986]), the plaintiffs raised triable issues of fact as to whether they hadpartially performed in a manner unequivocally referable to its terms. The plaintiff Steven G.Pinkava submitted an affidavit indicating that he paid the Yurkiws a total of $51,000, assumedsole management responsibility of the property, ordered a title search, and tendered a bank checkfor the balance of the purchase price. The plaintiffs also submitted a handwritten documentprepared by Anna's late husband referencing "Steve" and the subject property, which showed adecreasing balance beginning with $150,000 in January 1998. Thus, there is evidence fromwhich a trier of fact might conclude that the plaintiffs' conduct was extraordinary andexplainable only by a reference to the oral contract (see Anostario v Vicinanzo, 59 NY2dat 664). This evidence raises a triable issue of fact as to part performance which precludes anaward of summary judgment dismissing the second through twelfth causes of action on theground that they were barred by the statute of frauds (see Panetta v Kelly, 17 AD3d 163 [2005]; Adelman vRackis, 212 AD2d 559 [1995]; Spirt v Spirt, 209 AD2d 688 [1994]).
Moreover, accepting the plaintiffs' factual allegations as true, and according them the benefitof every favorable inference, as we must on a motion to dismiss for failure to state a cause ofaction (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), the plaintiffs' allegations ofpayments to the Yurkiws of $51,000 and their contribution of time managing the property wassufficient to establish the transfer in reliance and unjust enrichment elements of a cause of actionfor a constructive trust (see Salatino vSalatino, 13 AD3d 512 [2004]; Matter of Bayside Controls, 295 AD2d 343, 346[2002]; Gottlieb v Gottlieb, 166 AD2d 413, 414 [1990]).
The defendants' remaining contentions are without merit. Prudenti, P.J., Miller, Covello andAustin, JJ., concur.