Opinion
CA 02-01322
December 30, 2002.
Appeal from a judgment of Supreme Court, Oswego County (Nicholson, J.), entered August 23, 2001, which granted defendant's motion to dismiss the complaint.
HARRIS PANELS, SYRACUSE (MICHAEL W. HARRIS OF COUNSEL), FOR PLAINTIFF-APPELLANT.
MELVIN MELVIN, LLP, SYRACUSE (RONALD S. CARR OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: HAYES, J.P., HURLBUTT, KEHOE, BURNS, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Plaintiff commenced this action seeking to enforce an alleged oral agreement pursuant to which defendant was to convey certain real property to plaintiff. Taking all of the allegations in the complaint as true and resolving all inferences that reasonably flow therefrom in favor of plaintiff ( see Niagara Mohawk Power Corp. v. Freed, 265 A.D.2d 938, 938), we conclude that Supreme Court properly granted defendant's motion to dismiss the complaint. Enforcement of the alleged oral agreement is barred by the statute of frauds ( see General Obligations Law § 5-703). Neither plaintiff's forbearance from bidding on the property nor plaintiff's preparatory steps in obtaining financing to purchase the property were "unequivocally referable" to the alleged oral agreement to constitute part performance thereof and thereby to remove this case from the statute of frauds ( Messner Vetere Berger McNamee Schmetterer Euro RSCG v. Aegis Group, 93 N.Y.2d 229, 235; see § 5-703 [4]; Bridgeview Dev. Corp. v. Hooda Realty, 145 A.D.2d 457, 458; Francesconi v. Nutter, 125 A.D.2d 363, 364). We further conclude that defendant is not estopped from asserting the statute of frauds. Plaintiff allegedly requested partial financing from defendant when the parties discussed the conveyance of the property to plaintiff, and defendant allegedly "advised plaintiff to submit an offer and defendant would undertake to process it for consideration." Because defendant's alleged statement was conditional, plaintiff could not reasonably rely on that statement as a promise to convey the property. Thus, estoppel does not lie ( see Trick v. County of Westchester, 216 A.D.2d 555, 556; see also G F Assoc. Co. v. Brookhaven Beach Health Related Facility, 249 A.D.2d 441, 443, lv denied 92 N.Y.2d 807).