Opinion
January 25, 1971
In an action by a broker to recover commissions upon the sale of real property, defendants appeal from so much of an order of the Supreme Court, Nassau County, dated September 9, 1970, as, upon plaintiff's motion for summary judgment, (1) granted the motion to the extent of dismissing the three counterclaims of defendants Weinstein and (2) failed to grant defendants' request for summary judgment dismissing plaintiff's complaint. Order modified by deleting therefrom the words from "Granted" to "dismissed", inclusive, and substituting therefor the following: "Granted to the extent that the first counterclaim of defendants Weinstein is dismissed". As so modified, order affirmed insofar as appealed from, without costs. We share Special Term's view that defendants Weinstein were lax in not taking pretrial depositions from employees of the engineering firm of Baldwin Cornelius in order to ascertain plaintiff's role, if any, with respect to the preparation, filing and approval of the drainage map in issue which encompasses the properties of plaintiff and the Weinsteins. Nevertheless, we believe it erred in dismissing the second and third counterclaims of the Weinsteins on the ground that the alleged agreement between plaintiff and the Weinsteins to create a drainage easement over plaintiff's land for the benefit of the Weinsteins' adjoining land was never reduced to writing and therefore was void under section 5-703 Gen. Oblig. of the General Obligations Law (Statute of Frauds). With respect to the applicability of the statute, from a perusal of all papers submitted on this phase of the motion we are of the opinion that factual questions exist as to (a) whether there was substantial or part performance of the alleged oral agreement, as evidenced by (1) the preparation and existence of the drainage map affecting both parcels, (2) the filing of the map with the Town of Brookhaven, (3) the map's subsequent approval by that municipality and (4) the construction of a drainage on the Weinstein property in accordance with the drainage plan reflected in the map (cf. Peterson v. McAllister, 234 App. Div. 896); or (b) whether plaintiff gave written authorization to the engineering firm to prepare and file the drainage map for the area in order to give effect to the oral agreement. Although in this action the Weinstein defendants did not link plaintiff directly with the creation of the map, they should be afforded the opportunity to show such connection at a trial of the issues, since the facts as to such connection, if they exist, would be in the exclusive knowledge of plaintiff and/or the engineering firm and not within the knowledge of the Weinsteins ( West Va. Pulp Paper Co. v. Merchants Mut. Ins. Co., 10 A.D.2d 451). Hopkins, Acting P.J., Latham, Christ, Brennan and Benjamin, JJ., concur.