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Rechais v. McGivans

119 A.D.3d 667 Court N.Y. App. Div. Decision date 2014-07-09 English

Judges Mastro, J.E, Leventhal, Lott and Miller, JJ., concur.

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p. 667
H. Anthony Rechais, Appellant, v Marjorie McGivans, Respondent.
[988 NYS2d 896]

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

p. 668
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 plaintiffs contention, the part performance exception to the statute of frauds is inapplicable, as the plaintiffs alleged actions were not “unequivocally referable” to the alleged oral agreement (Mess ner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229 , 235 [1999]; see Anostario v Vicinanzo, 59 NY2d 662 , 664 [1983]; Burns v McCormick, 233 NY 230 , 232 [1922]).

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

Mastro, J.E, Leventhal, Lott and Miller, JJ., concur.

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