Opinion
November 15, 1989
Appeal from the Supreme Court, Monroe County, Mastrella, J.
Present — Callahan, J.P., Boomer, Pine, Lawton and Davis, JJ.
Order unanimously modified on the law and as modified affirmed, without costs, in accordance with the following memorandum: We conclude that defendant is entitled to summary judgment dismissing each of the four causes of action asserted in plaintiffs' amended complaint.
The first cause of action asserts that defendant breached a purported oral agreement to release 10 acres of land from the lien of its mortgage at some time in the future. Assuming, arguendo, that such oral agreement was made, it is clear that it is governed by the Statute of Frauds (see, General Obligations Law § 5-703; Sleeth v Sampson, 237 N.Y. 69, 72-73) and therefore is unenforceable because it is not in writing (see, Leone v Johnson, 99 A.D.2d 567). We reject plaintiffs' contention that three writings, considered together, are sufficient to satisfy the Statute of Frauds and constitute a written contract to release the 10 acres from the lien of the mortgage. Moreover, we find no merit to plaintiffs' claim that defendant should be estopped from asserting the defense of Statute of Frauds (see, Buddman Distribs. v Labatt Importers, 91 A.D.2d 838, 839). Further, the parol evidence rule precludes consideration of the alleged oral representations made by defendant's attorney at the closing (see, Braten v Bankers Trust Co., 60 N.Y.2d 155, rearg denied 61 N.Y.2d 670; see also, Marine Midland Bank v Simpson Edson, Inc., 120 A.D.2d 709, 711). In view of our determination that the first cause of action must be dismissed because the Statute of Frauds bars its enforcement, we do not address defendant's contention that the parties entered into a subsequent written agreement which, in any event, superseded the alleged oral agreement.
The second cause of action predicated upon defendant's alleged breach of the parties' escrow agreement must also be dismissed. The terms of the mortgage provided, in part, that "the whole of the principal sum and interest secured hereby shall become due at the option of the Mortgagee upon any default hereunder". Accordingly, because plaintiff Largo defaulted in making the required mortgage interest payments prior to May 1, 1983, defendant properly refused to pay Largo the balance of the loan proceeds in the sum of $50,000. Further, defendant asserts, and plaintiffs do not refute, that Largo was required to pay interest only on the moneys actually advanced from the loan proceeds. Moreover, "where one party refuses to abide by the contract, and that refusal is not justified by the actions of the other party, the other party does not have a duty to continue his performance under that contract" (Royce v Rymkevitch, 29 A.D.2d 1029, 1030; see also, 805 Third Ave. Co. v. M.W. Realty Assocs., 58 N.Y.2d 447, 451-453).
Plaintiffs' third cause of action for conversion must also be dismissed. The alleged conversion occurred on November 30, 1983. The cause of action was first asserted in plaintiffs' amended complaint dated March 10, 1987. Contrary to plaintiffs' contention, the original complaint did "not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading" (CPLR 203 [e]). Accordingly, the third cause of action alleging conversion of funds is time barred (see, CPLR 214; Aiello v Saddock, 88 A.D.2d 984).
The fourth cause of action which alleges fraudulent misrepresentation must also be dismissed. Plaintiffs have not asserted that the alleged oral misrepresentations were made with the intention of nonperformance. "[T]here is no fraud if the promise is made in good faith without any intention of nonperformance at the time of its making, even though the promisor subsequently changes his mind and fails or refuses to perform" (60 N.Y. Jur 2d, Fraud and Deceit, § 44; see, Boylan v Morrow Co., 63 N.Y.2d 616, 619; Manufacturers Traders Trust Co. v Cottrell, 71 A.D.2d 538, 543). In addition, the facts constituting the wrong are not alleged with the specificity and particularity required by CPLR 3016 (b) (see, Lotz v Lotz, 135 A.D.2d 1007, 1008, appeal dismissed 71 N.Y.2d 1012).