Defendants filed a motion to dismiss, and the New York trial court granted the motion, holding that plaintiff could not satisfy the statute of frauds. On appeal, the trial court's ruling regarding the statute of frauds was affirmed in Nemelka v Questor Mgmt Co, 40 AD3d 505, 506; 836 NYS2d 598 (2007), wherein the New York appellate court ruled in full as follows: The motion court correctly held that, notwithstanding plaintiffs' characterization of its relationship with defendants as co-investors, partners or joint venturers, plaintiffs' claim is actually one for breach of an oral contract under which plaintiffs agreed to procure a business opportunity for defendants

The doctrine of part performance, however, is not an exception to the subsection of the General Obligations Law at issue. See Belotz v. Jefferies Co., Inc., 213 F.3d 625 (2d Cir. 2000) ("Section 5-701(a)(10) does not expressly provide a part performance exception, and the New York Court of Appeals has firmly stated that there is no such exception."); see also Sea Trade Co. Ltd. v. FleetBoston Fin. Corp., 03 Civ. 10254 (JFK), 2004 WL 2029399 at *4-5 (S.D.N.Y. 2004) ("The partial performance exception to the statute of frauds applies to those agreements governed by § 5-703 of the General Obligations law . . . no such exception has been recognized with respect to agreements governed by § 5-701."); Nemelka v. Questor Mgmt. Co. LLC, 40 A.D.3d 505, 836 N.Y.S.2d 598, 599 (2007) ("The exception to the statute of frauds for part performance does not apply to General Obligations Law § 5-701(a)(10)."). Ramko's final argument on this issue is that its relationship with URRC was "so extensive" that the Statute of Frauds' writing requirement can be overlooked.

These alleged services rendered pursuant to the Ukrainian Agreement were performed in order to assist in the "negotiation or consummation of the transaction." See Nemelka v. Questor Management Co., LLC, 40 AD3d 505 (1st Dept 2007) (oral to procure a business opportunity in exchange for compensation in the form of a limited right to co-invest in the opportunity was barred by the statute of frauds); Andrews, 271 AD2d at 348. Therefore, the alleged Ukrainian Agreement falls within GOL § 5-701(a)(10) and is barred by the statute of frauds.

Here, the document is not subscribed by the party to be charged. See Sheehy v. Clifford Chance Rogers & Wells LLP, 3 N.Y.3d 554, 559-60 (2004) (finding that an agreement is void if it is not in writing and "subscribed by the party to be charged therewith."); Rosenfeld v. Schreiber, 139 A.D.3d 609 (1st Dept 2016) (where a written agreement is among other things, signed by the parties to be charged, it satisfies the statute of frauds at the motion to dismiss stage of litigation); Nemelka v. Questor Management Co., LLC, 40 A.D.3d 505, 506 (1st Dept 2007) (unsigned documents do not satisfy the statute of frauds); Saivest Empreendimentos Imobiliarios E. Participacoes, Ltda v. Elman Invs., Inc., 117 A.D.3d 447, 448-49 (1st Dept 2014) (finding that the General Obligations Law requires that the agreement be subscribed by the party to be charged.). Therefore, the agreement is void.

In other words, quasi contract and tort claims are "not viable when [they] merely seek[] the enforcement of the unenforceable contract itself." Komolov, 40 Misc3d 1228(A), at *4; see also Kocourek v Booz Allen Hamilton Inc., 71 AD3d 511, 512 (1st Dept 2010) ("The unjust enrichment claim was also properly dismissed, as litigants may not use such a claim to evade New York's statute of frauds"); Nemelka v Questor Mgmt. Co., 40 AD3d 505, 506 (1st Dept 2007) ("Plaintiffs' remaining claims were properly dismissed as arising out of an alleged breach of an unenforceable agreement"); Andrews v Cerberus Partners, 271 AD2d 348 (1st Dept 2000) (same).