Opinion
November 28, 1994
Appeal from the Supreme Court, Nassau County (Schmidt, J.).
Ordered that the order is affirmed, with costs.
It is undisputed that the plaintiff expended approximately $150,000 to construct an addition (hereinafter referred to as the premises) upon the home of the defendant, his daughter. He alleges that he did this pursuant to an agreement with the defendant to convey to him a life estate in the premises. Notwithstanding the purported agreement, the defendant allegedly removed the plaintiff and his wife from the premises and relocated them in a nursing home against their will.
Contrary to the plaintiff's contention, the memorandum contained in the special use application made to the Zoning Board of Appeals of the Village of Bayville, which stated the intended use of the addition, is not a conveyance of an interest in real property, among other reasons, because it does not clearly manifest that it is the intent of the parties that an interest in the land is, in fact, being conveyed to the plaintiff (cf., Willow Tex v. Dimacopoulos, 68 N.Y.2d 963, 965; 219 Broadway Corp. v. Alexander's, Inc., 46 N.Y.2d 506, 512). Specifically, there are no operative words of present intention to convey an interest in real property in the memorandum, such as "transfer, sell, release, grant, assign or convey" (see, General Obligations Law § 5-703; see also, Real Property Law § 240; §§ 243, 258, 290 [3]; cf., Stratis v. Doyle, 176 A.D.2d 1096, 1097; Evans v. Taraszkiewicz, 125 A.D.2d 884, 885-886).
Further, contrary to the plaintiff's contention, the memorandum does not represent a contract to convey an interest in real property pursuant to the Statute of Frauds, because, although it designates the parties and identifies and describes the subject matter, it does not state all of the essential terms of a complete agreement, such as the consideration (see, General Obligations Law § 5-703; see also, Matter of Davis v Dinkins, 206 A.D.2d 365; Natuzzi v. Rabady, 177 A.D.2d 620, 623; Delfino v. Estate of Parkinson, 159 A.D.2d 476, 477; Aceste v Wiebusch, 74 A.D.2d 810; Conway v. Maher, 185 A.D.2d 570, 570-571). In addition, parol evidence may not be received to supplement an insufficient writing so as to bring it into compliance with the requirements of the Statute of Frauds (see, O'Brien v. West, 199 A.D.2d 369, 370).
However, the Statute of Frauds specifically provides an exception to the writing requirement where there is part performance that is "unequivocally referable" to an oral agreement (see, General Obligations Law § 5-703; see also, Burns v. McCormick, 233 N.Y. 230, 231-233). The plaintiff has stated sufficient facts to raise a triable issue as to whether his acts were unequivocally referable to an oral agreement to convey an interest in real property, and the memorandum, as well as plaintiff's payment of the $150,000, are probative on the issue of the plaintiff's part performance (see, Spodek v Riskin, 150 A.D.2d 358, 360; see also, Uskokovic v. Radunovich, 127 A.D.2d 830; City Store Gates Mfg. Corp. v. United Steel Prods., 79 A.D.2d 671, 671-672). Furthermore, the plaintiff has shown facts sufficient to raise a triable issue with respect to his demand for the imposition of a constructive trust upon the premises (see, McGrath v. Hilding, 41 N.Y.2d 625). In addition, since the plaintiff showed a probability of success on the merits, a danger of irreparable injury in the absence of the preliminary injunction, and a balance of the equities in his favor, the Supreme Court did not improvidently exercise its discretion when it granted the preliminary injunction (see, Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860, 862; see also, Moczan v Moczan, 135 A.D.2d 692; Weissman v. Kubasek, 112 A.D.2d 1086; Poling Transp. Corp. v. A P Tanker Corp., 84 A.D.2d 796, 797; cf., Krause v. Krause, 112 A.D.2d 862, 864).
There is no merit to the defendant's remaining contention. Ritter, J.P., Santucci, Friedmann and Goldstein, JJ., concur.