| Singh v Kur |
| 2009 NY Slip Op 05957 [64 AD3d 697] |
| July 21, 2009 |
| Appellate Division, Second Department |
| Jagir Singh et al., Appellants, v Surinder Kur et al.,Respondents. |
—[*1] Michael & Swerdloff, LLC, Brooklyn, N.Y. (Leonard Swerdloff of counsel), forrespondents.
In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Queens County (Kitzes,J.), dated April 22, 2008, as granted those branches of the defendants' motion which werepursuant to CPLR 3211 (a) (1) to dismiss the complaint and for summary judgment dismissingthe complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
Jagir Singh (hereinafter the plaintiff) brought this action against the defendants SurinderKur, Majinder Kur, and three limited liability companies, alleging that he entered into a contractwith them to become a shareholder in Star-Bright Entertainment, Inc. (hereinafter Star-Bright),which was also named as a plaintiff for purposes of the plaintiff's shareholder derivative cause ofaction. The plaintiff alleged that he and the individual defendants' husbands agreed to develop aparcel of real property in Queens which was owned by Star-Bright, and that pursuant to thatagreement he paid the defendants the sum of $300,000, which was to be used to develop theproperty. The plaintiff alleged that he was to receive shares of Star-Bright in exchange for the$300,000. The Supreme Court, inter alia, granted that branch of the defendants' motion whichwas for summary judgment dismissing the complaint. We affirm.
As to the plaintiff's cause of action alleging breach of contract, the defendants met theirprima facie burden establishing their entitlement to judgment as a matter of law by offeringadmissible evidence that they never signed the proposed contract with the plaintiff and neverreceived any money from him (seeTikvah Realty, LLC v Schwartz, 43 AD3d 909 [2007]). Since the contract was notsigned by the defendants, the parties to be charged with its enforcement, it was void as againstthem pursuant to the statute of frauds (see General Obligations Law § 5-701 [a][1]; Vista Props., LLC v Rockland Ear,Nose & Throat Assoc., P.C., 60 AD3d 846 [2009]). In opposition, the plaintiff failed toraise a triable issue of fact as to whether there was an enforceable oral contract under thedoctrine of part performance (see Anostario v Vicinanzo, 59 NY2d 662, 664 [1983]).The plaintiff submitted an affidavit stating that he delivered the sum of $300,000 in cash to theindividual defendants' husbands in a brown paper bag. However, the alleged delivery of thismoney was not "unequivocally referable" [*2]to the allegedcontract, such as to constitute part performance (see 745 Nostrand Retail Ltd. v 745 Jeffco Corp., 50 AD3d 768,769 [2008]; Tikvah Realty, LLC vSchwartz, 43 AD3d 909 [2007]).
The Supreme Court properly granted summary judgment dismissing the shareholderderivative cause of action asserted on behalf of Star-Bright, as the defendants established theirprima facie entitlement to judgment as a matter of law and the plaintiff failed to raise an issue offact as to whether he ever acquired any stock in Star-Bright (see Business CorporationLaw § 626 [b]; see also Independent Inv. Protective League v Time, Inc., 50 NY2d259, 263 [1980]).
The Supreme Court also properly granted summary judgment dismissing the plaintiff'sremaining causes of action, inter alia, for money had and received, and to recover damages forunjust enrichment and fraud. The defendants established their prima facie entitlement tojudgment as a matter of law on these causes of action and, in opposition, the plaintiff failed toraise an issue of fact as to whether the defendants committed the acts which formed the basis ofthose causes of action. According to the affidavits submitted by the plaintiff, the allegedwrongful conduct was on the part of the individual defendants' husbands, who are not parties tothe action.
The plaintiff's remaining contentions are without merit, or need not be reached in light of ourdetermination. Florio, J.P., Miller, Covello and Austin, JJ., concur. [See 2008 NY SlipOp 31313(U).]