Boone Assoc. L.P. v. Kidder

Full title: BOONE ASSOCIATES L.P. d/b/a THE MARY BOONE GALLERY, Plaintiff, v. MARY…

Court: Supreme Court of the State of New York, New York County

Date published: Oct 7, 2009

2009 N.Y. Slip Op. 32332 (N.Y. Sup. Ct. 2009)

Opinion

101807/09.

October 7, 2009.

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] DORIS LING-COHAN, J.

The defendant Mary Kidder (Kidder) moves, pursuant to CPLR 3211 (a) (5), (7), and (8), for an order dismissing the complaint on the grounds that: (1) the action may not be maintained because of the Statute of Frauds (UCC § 2-201); (2) the complaint fails to state a cause of action; and (3) the court lacks jurisdiction over Kidder's person.

The plaintiff, Boone Associates, L.P. d/b/a The Mary Boone Gallery (Boone Associates) is an art dealer located in Manhattan. The defendant Kidder is an art collector residing in the State of Ohio. This is an action to recover damages for the alleged breach of a contract to purchase for the sum of $32,000, a work by the artist Will Cotton entitled "Ribbon Candy." The complaint sets forth a cause of action for breach of contract, and a cause of action for quasi contract/promissory estoppel.

In support of its motion to dismiss the complaint, the defendant Kidder alleges that, other than as an occasional visitor, she has no contacts with the State of New York, and that she neither orally agreed, nor signed an agreement, to purchase the art work. Kidder's sole contacts with Boone Associates consisted of two visits by Kidder to Boone Associates art fair booth in Miami Beach Florida, and one e-mail and one telephone call, between Kidder in Ohio, and Boone Associates in New York. The defendant Kidder argues that UCC 2-201 (1) makes an oral contract for the sale of $500 or more worth of goods, unenforceable against a party who has signed nothing.

In opposition to the motion to dismiss, the plaintiff Boone Associates makes the following arguments. The court has in personam jurisdiction over the defendant Kidder because Kidder transacted business in New York. A single transaction is sufficient to establish jurisdiction. Negotiations through e-mail, and an exchange of correspondence constitutes purposeful activity. Kidder's engagement of a New York gallery subjects her to personal jurisdiction in New York. The agreement between Kidder and Boone Associates does not fall within the Statute of Frauds. The agreement is enforceable under the Statute of Frauds. Boone Associates is entitle to recover under the doctrine of promissory estoppel.

On a motion to dismiss pursuant to CPLR 3211 (a) (5) based on the Statute of Frauds, the threshold issue is whether the documents are sufficient on their face to satisfy the Statute of Frauds. That issue must be determined from the documents themselves, as a matter of law ( Bazak Intl. Corp. v. Mast Industries, Inc., 73 NY2d 113, 118). On a motion pursuant to CPLR 3211 (a) (7) to dismiss a complaint for legal insufficiency, the court accepts the facts alleged as true and determines simply whether the facts alleged fit within any cognizable legal theory ( Morone v Morone, 50 NY2d 481). The pleading is to be liberally construed, accepting all the facts alleged therein to be true, and according the allegations the benefit of every possible favorable inference ( Goshen v Mutual Life Ins. Co. of N. Y., 98 NY2d 314). The credibility of the parties is not under consideration ( S.J. Capelin Assoc., v Globe Mfg. Corp., 34 NY2d 338). On a motion to dismiss pursuant to CPLR 3211 (a) (8), a dismissal is warranted if, on the undisputed facts, there is no in personam jurisdiction ( Quantum Corporate Funding, Ltd. v Southwestern Bell Telephone, LP, 45 AD3d 505 [1^st Dept 2007]).

The court will first dispose of the motion to dismiss on the ground that the cause of action may not be maintained because of the Statute of Frauds (CPLR 3211 [a] [5]), before turning to the issues of the adequacy of the pleading (CPLR 3211 [a] [7]), and personal jurisdiction (CPLR 3211 [a] [8]).

Contracts for the sale of goods of $500 or more are not enforceable "unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker" (UCC 2-201 ). The Statute of Frauds applicable to the sale of goods provides that the agreement is binding even if the writing omits or incorrectly states a term of the agreement ( Henry L. Fox Co. v. William Kaufman Organization, Ltd., 74 NY2d 136, 141).

The alleged contract in this case was for the sale of more than $500 worth of goods. Contrary to the plaintiff Boone Associates' assertion, UCC 2-201 (1) is not limited to merchants engaged in business dealings ( Morris v. Cutting Motors, Inc., 2 AD3d 1244 [3d Dept 2003]). Special merchant rules are sprinkled throughout article 2 of the UCC, distinguishing the obligations of business people from others. UCC 2-201 (1), by its terms, is not limited to merchants. Therefore, the alleged contract to purchase the art work is subject to the Statute of Frauds.

Applying this standard to the facts, and determining whether the documents in issue satisfy the requirements of UCC 2-201 (1), there is no writing signed by Kidder satisfying the Statute of Frauds governing sales. Therefore, the motion to dismiss on the ground that the action may not be maintained because of the Statute of Frauds must be granted.

Turning to the whether or not the complaint fails to state a cause of action (CPLR 3211 [a] [7]), a benefit conferred under a contract unenforceable under the Statute of Frauds may be recovered in quasi contract ( Harmon v Alfred Peats Co., 243 NY 473). However, the injured party must demonstrate that it would be unconscionable to invoke the Statute of Frauds to bar the claim ( Steele v Delverde S.R.L., 242 AD2d 414 [1^st Dept 1997]). Here, the complaint and motion papers are devoid of any showing whatever of unconscionability.

In addition, although promissory estoppel is a legally cognizable cause of action, a party relying upon promissory estoppel must demonstrate that there was a clear and unambiguous promise upon which it reasonably and detrimentally relied ( Clifford R. Gray, Inc. v LeChase Constr. Services, LLC, 31 AD3d 983 [3d Dept 2006]). The plaintiff Boone Associates' papers are devoid of any showing of detrimental reliance. The mere allegation that the defendant Kidder did not intend to honor the agreement is insufficient to convert the breach of contract claim into one for promissory estoppel.

Finally, on the question of personal jurisdiction (CPLR 3211 [a] [8]), the defendant Kidder's negotiation of the potential purchase of a work of art, via e-mail and telephone, which was initiated by plaintiff Boone Associates, after Kidder visited Boone Associate's booth in Miami Beach, is insufficient to constitute the "transaction" of business within New York ( Granat v Bochner, 268 AD2d 365 [1^st Dept 2000]), and, since the art work was to be delivered to Ohio, there was no contract to "supply goods or services in the state" (CPLR 302 [a] [1]; Arouh v Budget Leasing, Inc., 63 AD3d 506 [1st Dept 2009]).

Accordingly, it is

ORDERED that the motion to dismiss is granted and the complaint is dismissed with costs and disbursements to the defendant as taxed by the Clerk of the Court; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly; it is further

ORDERED that within 30 days of entry of this order, defendant shall serve a copy upon plaintiff with notice of entry.