However, such agreements must meet the strictures of the Statute of Frauds. The Court of Appeals decision in Wills v Wills, 28 NY2d 645 (1971) is instructive. As the husband's execution of the power of attorney in Wills ( 28 NY2d at 646), the equal division of the maintenance and the space among the parties here does not constitute partial performance sufficient to remove the bar of the Statute of Frauds, since such performance is not unequivocally referable to a five year bar against partition.
Thus, even viewed in the most liberal light, the pleading is not sufficiently specific to assert a fraud claim (CPLR 3016). Rather, as the Appellate Division concluded, this second count simply recasts plaintiff's contract claim and should also be dismissed (Wills v Wills, 28 N.Y.2d 645, 647). Therefore, I would affirm the order of the Appellate Division in all respects.
It is not enough that what is promised may give significance to what is done" (Burns v McCormick, 233 N.Y. 230, 232, supra). The acts alleged by the plaintiff, if proven, would not satisfy that requirement (see, e.g., Wilson v Le Van, 22 N.Y.2d 131; Wills v Wills, 28 N.Y.2d 645). The order of the Appellate Division should be affirmed.
In view of "the fundamental inconsistency of [the alleged oral promises attributed by plaintiff to defendant] with the explicit terms of [the written orders, prepared by plaintiff, which state unequivocally they are an offer] addressed to the precise subject matter of the alleged promises, it would take more than the circumstance that defendant did not honor * * * the alleged oral promises * * * after they were made to establish a factual issue as to whether the promises, if made, were made with fraudulent intent" (Lebowitz v Mingus, supra, at 818). The Court of Appeals in Wills v Wills ( 28 N.Y.2d 645, 647) stated "the mere failure on the part of [defendant] to carry out the supposed bargain could not give rise to an inference of fraud excusing the application of the [S]tatute [of Frauds]".
Given the conclusory character of the fraud claim, the contradictory nature of the oral promises attributed to defendant, and the fundamental inconsistency of those promises with the explicit terms of a carefully developed lease provision addressed to the precise subject matter of the alleged promises, it would take more than the circumstance that defendant did not honor either of the alleged oral promises three years after they were made to establish a factual issue as to whether the promises, if made, were made with fraudulent intent. As the Court of Appeals observed in Wills v Wills ( 28 N.Y.2d 645, 647): "the mere failure on the part of the appellant to carry out the supposed bargain could not give rise to an inference of fraud excusing the application of the statute."
It is not enough that what is promised may give significance to what is done." (See, also, Wills v Wills, 34 A.D.2d 564, dissenting memorandum of HOPKINS, J., revd for the reasons stated in the dissent in the Appellate Division, 28 N.Y.2d 645.)
Even if this statement contained a mere typographical error, the complaint fails to allege how plaintiff reasonably relied upon the defendant's statements and does not allege that the plaintiff was injured in any manner. Furthermore, as the Court of Appeals observed in Wills v Wills ( 28 NY2d 645, 647) : "the mere failure on the part of the appellant to carry out the supposed bargain could not give rise to an inference of fraud excusing the application of the statute" of frauds (see also Lebowitz v Mingus, supra at 818).