Summary
In Gold, the court held that written authorization of the attorney to act on behalf of his client was necessary before the attorney's signing of a real estate contract on behalf of his client could be used to remove the client's oral agreement from the Statute of Frauds.
Summary of this case from Roberts v. KarimiOpinion
December 24, 1990
Appeal from the Supreme Court, Kings County (Hurowitz, J.).
Ordered that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as it is asserted against the appellant, and the action against the remaining defendant is severed.
The alleged contract purportedly setting forth the parties' agreement, provides for the sale of an interest in certain real property. The record reveals that the alleged contract was never signed by the appellant, who is the party to be charged, and the appellant testified that he never intended that writing to constitute a contract, nor did he authorize his attorney to send it. In any event, there is no evidence that the appellant ever executed a written authorization to his attorney to act as his lawful agent in this matter (see, General Obligations Law § 5-703; Towpash v. Towpash, 119 A.D.2d 567; Ochoa v. Estate of Sarria, 97 A.D.2d 538; Singer v. Klebanow, 9 Misc.2d 1016). The appellant established as a matter of law that the plaintiff's causes of action for specific performance of the alleged contract for the sale of the real property or in the alternative to recover damages for breach of contract are barred by the Statute of Frauds (see, General Obligations Law § 5-703; Mesibov, Glinert Levy v. Cohen Bros. Mfg. Co., 245 N.Y. 305; Long Is. Pen Corp. v. Shatsky Metal Stamping Co., 94 A.D.2d 788; Charles E.S. McLeod, Inc. v. Hamilton Moving Stor., 89 A.D.2d 863; Scheck v. Francis, 33 A.D.2d 91, affd. 26 N.Y.2d 466; Scarane v. Fraser Mtge. Corp., 279 App. Div. 602).
Furthermore, based on this record, there are insufficient facts to invoke either the equitable doctrine of part performance (see, Burns v. McCormick, 233 N.Y. 230; see also, Jonestown Place Corp. v. 153 W. 33rd St. Corp., 53 N.Y.2d 847) or promissory estoppel (see, Swerdloff v. Mobil Oil Corp., 74 A.D.2d 258; see also, Greenbaum v. Weinstein, 131 A.D.2d 430). Bracken, J.P., Harwood, O'Brien and Ritter, JJ., concur.