Opinion
91072
Decided and Entered: October 17, 2002.
Appeal from an order of the Supreme Court (Best, J.), entered January 12, 2001 in Montgomery County, which denied defendant's motion for summary judgment dismissing the complaint.
Brown, Kelleher, Zwickel Stevens L.L.P., Catskill (Kevin M. Kelleher of counsel), for appellant.
Girvin Ferlazzo P.C., Albany (Salvatore D. Ferlazzo of counsel), for respondent.
Before: Mercure, J.P., Peters, Carpinello, Mugglin and Rose, JJ.
MEMORANDUM AND ORDER
In June 2000, plaintiff submitted a written purchase offer for certain real property owned by defendant. Despite plaintiff's proposal, defendant accepted an offer tendered by a third party, Sumner of New York, Inc. Plaintiff then commenced this action seeking specific performance of a purportedly binding purchase agreement with defendant, as well as a judgment declaring defendant's contract with Sumner to be null and void. Following joinder of issue, defendant moved for summary judgment dismissing the complaint on the ground that there is no executed written agreement between itself and plaintiff as required by the statute of frauds. Finding a question of fact as to whether Joseph Alessandro, acting on defendant's behalf, had signed such an agreement, Supreme Court denied defendant's motion, prompting this appeal.
We reverse. Defendant met its initial burden on the motion by tendering proof that the alleged purchase agreement was signed only by plaintiff and, thus, was void under the statute of frauds (see General Obligations Law § 5-703). Plaintiff then failed to sustain his burden to raise a triable issue of fact as to whether someone on defendant's behalf had executed the agreement (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562; Wells v. Ronning, 269 A.D.2d 690, 691).
The only proof of defendant's execution of the agreement is plaintiff's assertion that Alessandro, in his capacity as executor of the estate of defendant's deceased majority shareholder, rather than as defendant's president, had orally admitted signing it. Since there is no evidence that Alessandro was authorized to execute the purchase agreement on defendant's behalf, or to admit its execution, the proof offered by plaintiff is inadmissible (see Simpson v. New York City Tr. Auth., 283 A.D.2d 419, 419; see also Loschiavo v. Port Auth. of N.Y. N.J., 58 N.Y.2d 1040, 1041).
The cases upon which Supreme Court relied are also unavailing. Although they involved enforceable purchase agreements signed by only one party, in each case, unlike here, the party to be charged was the one who signed the agreement (see Tymon v. Linoki, 16 N.Y.2d 293; Justice v. Lang, 42 N.Y. 493; Turkish Socy. of Rochester v. Cimino, 192 A.D.2d 1121). Since the statute of frauds was not shown to be satisfied here, plaintiff's agreement is void and unenforceable (see G.G.F. Props. v. Yu Mi Hong, 284 A.D.2d 427; Muscatello v. Artco Chem., 251 A.D.2d 882, 882). Thus, Supreme Court erred in denying defendant's motion for summary judgment. This conclusion makes it unnecessary to consider defendant's alternate contentions.
Mercure, J.P., Peters, Carpinello and Mugglin, JJ., concur.
ORDERED that the order is reversed, on the law, with costs, motion granted, summary judgment awarded to defendant and complaint dismissed.