Opinion
5590N Index 152878/15
02-01-2018
LONDON PAINT & WALLPAPER CO., INC. doing business as London True Value Hardware, etc., et al., Plaintiffs–Appellants, v. Sidney KESSELMAN, etc., et, al., Defendants–Respondents, Evelyn Kesselman, etc., Defendant.
Wasser & Russ, LLP, New York (Adam H. Russ of counsel), for appellants. Anderson Kill P.C., New York (Andrew J. Wagner of counsel), for respondents.
Wasser & Russ, LLP, New York (Adam H. Russ of counsel), for appellants.
Anderson Kill P.C., New York (Andrew J. Wagner of counsel), for respondents.
Renwick, J.P., Richter, Tom, Gesmer, Oing, JJ.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered June 28, 2016, which denied plaintiffs' motion to amend the complaint, and granted defendants Sidney Kesselman, as Trustee of Kesselman Living Trust, dated October 6, 1997, Sidney Kesselman and Terri Zimmerman's cross motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
To the extent plaintiffs contend that the court erred in granting defendants' motion for summary judgment after having granted plaintiffs' motion for a preliminary injunction ( 2015 N.Y. Slip Op. 31398[U], 2015 WL 4540385 [Sup. Ct., N.Y. County July 27, 2015], mod 138 A.D.3d 632, 30 N.Y.S.3d 90 [1st Dept. 2016] ), this contention is misplaced; the granting of the preliminary injunction does not constitute the law of the case ( Walker Mem. Baptist Church, Inc. v. Saunders, 285 N.Y. 462, 474, 35 N.E.2d 42 [1941] ; see also Gee Tai Chong Realty Corp. v. GA Ins. Co. of N.Y., 283 A.D.2d 295, 727 N.Y.S.2d 388 [1st Dept. 2001] [doctrine prohibits one Supreme Court justice from reviewing a ruling by another] ).
Plaintiffs contend that their claims, which arise from or seek enforcement of alleged oral "Family Agreements," are not barred under the Statute of Frauds (see General Obligations Law § 5–703 ; EPTL 13–2.1 ), because they fall within the statutory exception for part performance ( General Obligations Law § 5–703[4] ). However, plaintiffs' conduct is not, as required to invoke that exception, unequivocally referable to the alleged agreements (see Messner Vetere Berger McNamee Schmetterer Euro RSCG v. Aegis Group, 93 N.Y.2d 229, 235, 689 N.Y.S.2d 674, 711 N.E.2d 953 [1999] ). Nor is the parties' written rental agreement anything more than an unenforceable agreement to agree (see Joseph Martin, Jr., Delicatessen v. Schumacher, 52 N.Y.2d 105, 436 N.Y.S.2d 247, 417 N.E.2d 541 [1981] ). Moreover, defendants demonstrated as a matter of law that plaintiffs cannot prove that defendant Terri Zimmerman unduly influenced her parents to revoke, breach, or otherwise fail to perform under these unenforceable agreements.
Plaintiffs' proposed amendment to the complaint, which alleges Terri's undue influence with respect to the 2014 trust restatement, is "palpably insufficient" (see Tri–Tec Design, Inc. v. Zatek Corp., 123 A.D.3d 420, 421, 998 N.Y.S.2d 43 [1st Dept. 2014] ), given plaintiffs' inability to allege facts showing her actual exercise of such influence (see Matter of Kotick v. Shvachko, 130 A.D.3d 472, 473, 14 N.Y.S.3d 8 [1st Dept. 2015] ).
We have considered plaintiffs' remaining arguments and find them unavailing.