Opinion
November 15, 1985
Appeal from the Supreme Court, Erie County, Feeman, J.
Present — Callahan, J.P., Boomer, Green, O'Donnell and Schnepp, JJ.
Judgment unanimously affirmed, without costs, in accordance with the following memorandum: The part performance was insufficient to avoid the Statute of Frauds (General Obligations Law § 5-701 [a] [1]) since it was not unequivocally referable to the oral modification; it could well have been done in the performance of the original agreement (see, Bakhshandeh v American Cyanamid Co., 8 A.D.2d 35, affd 8 N.Y.2d 981).
Although the oral modification is void, plaintiff is entitled to judgment under the original contract which calls for a payment by defendant of 20% of the gross receipts from the coin-operated washing and drying machines installed in the laundry rooms of plaintiff's apartments. Defendant has failed to provide plaintiff or the court with an accounting of the gross rentals. We find, nevertheless, that a fair estimate of the gross receipts is $1.50 per week for each of the 32 apartment units. Thus, for the 168-month period involved, the estimated gross receipts are $34,675.20, 20% of which, or $6,935.04, is due plaintiff. As determined by the trial court, defendant is entitled to credits of $2,598.35, leaving an amount due plaintiff of $4,336.69. Since this is greater than the sum found by the trial court and the plaintiff did not cross-appeal, the judgment is affirmed.