Opinion
22003/2006.
Decided May 23, 2008.
Kressel Rothlein Walsh Roth, LLC, Massapequa, NY, Attorney for Plaintiff.
Christopher M. Gatto, Esq., Christine Malafi, Esq., Hauppauge, NY, Attorney for Defendants.
This is an action brought against the County of Suffolk (hereinafter the County) for breach of an agreement and unjust enrichment. The County now brings this motion to dismiss pursuant to CPLR 3211 basically upon the grounds of Statute of Frauds and Statute of Limitations.
According to the plaintiff, sometime around 1992 and 1993 the County was undertaking a project to expand a road and was seeking to acquire certain property through condemnation and eminent domain belonging to the plaintiff and his predecessors in interest which was used for head-in parking in front of a row of stores owned and leased by them.
The plaintiff contends that he and the other owners (hereinafter collectively referred to as the plaintiff) were concerned about the loss of customer parking and subsequently entered into an oral agreement with the County by which the plaintiff would deed over the strip of property required by the County at no cost in return for the County acquiring substitute land for parking which it would provide to the plaintiff.
As part of that agreement, the plaintiff was to obtain appraisals of the potential substitute parcels at the plaintiff's own expense and provide the appraisals to the County. After supplying the appraisals to the County, the plaintiff then waited for the substitution to be made with the an understanding that the process would take some time for the necessary governmental steps to be taken.
In 2002, the plaintiff contacted the County with regard to the substitute property. Indeed, it appears that the County was able to offer one of two parcels. In August of that year, dissatisfied with the offer, the plaintiff addressed the County Legislature with his complaint at which time one of the County legislators acknowledged on the record that the appraisals had been provided and that the County was previously willing to provide funding for one of the two parcels. The matter was left with an understanding that the issue would be reviewed further.
After further delay by defendant the plaintiff retained a lawyer in 2004 to begin review of the matter. A series of calls and correspondence resulted in a letter from the Department of Public Works which indicated that the plaintiff clearly dedicated the land to the County for no consideration and informed the plaintiff that there are no monies due (letter dated May 9, 2005; from Geoffrey J. Mascaro, Property Management Administrator/Condemnation Unit).
The letter was received by plaintiff's attorney on May 11, 2005. Plaintiff then filed a Notice of Claim with the County on August 9, 2005 (90 days after receipt of the "May 9, 2005" letter) and subsequently commenced this action on August 7, 2006 (1 year and 88 days from receipt of said letter).
The County argues that the accrual date for purposes of the Statute of Limitations is October 1, 1993 — the date of execution of the deeds in question. Accordingly, the Notice of Claim and the commencement of this action are both well beyond the allowable time for each; to wit: over 12 ½ years for the Notice of Claim ( see GML § 50-e) and over 11 ½ years for the commencement of the action ( see GML § 50-I).
In addition, the County argues that any alleged oral agreement with regard to the substituted parcels was subject to the Statute of Frauds (GOL § 5-703) and is not enforceable unless in writing.
In opposition, the plaintiff contends that the underlying claim did not arise until his attorney received the letter from the County on May 11, 2005 informing him of the County's final determination that there was no basis for his position that the County was obligated to provide him with land (or money) in return for the plaintiff dedicating the land in question to the County for no consideration. Accordingly, the plaintiff argues that the accrual date was May 11, 2005 rather than October 1, 1993 and the filing of the Notice of Claim and the commencement of this action were, thus, timely.
As to the Statute of Frauds, the plaintiff argues that the deeds do not evidence the entire agreement; they merely show part performance of a broader oral agreement and, thus, under these circumstances, parole evidence as to the broader agreement should be permitted.
The court agrees with the plaintiff that this action is not time-barred and that the Statute of Frauds does not apply.
With regard to a Statute of Limitations argument, the burden of proof is on the party asserting it ( see, Edwards v Coughlin, 191 AD2d 1044 [Fourt Dept., 1993]). In addition, an affirmation from an attorney with no personal knowledge of the facts is insufficient to support such an argument ( id.)
Here, there is no affidavit from a party with knowledge of the facts in support of the Statute of Limitations argument. Also, a review of the complaint and the affidavit from the plaintiff, both of which must be presumed to be true when considering a motion to dismiss pursuant to CPLR 3211 ( see, Grossfield v Grossfield, 224 AD2d 583 [Second Dept., 1996]), supports a finding that all of the facts necessary to sustain the causes of action in the complaint did not occur until the letter of May 9, 2005 in which, for the first time, the County took the position that there was no merit to the plaintiff's contention that he was entitled to consideration for his deeding over of the land in question ( see, Vigilant Ins. Co. of America v Housing Auth. of the City of El Paso, 87 NY2d 36). It was not until receipt of that letter that the plaintiff first became aware that the County was not going to comply with the alleged agreement and, thus, that he needed to seek his relief in court ( id.).
On this basis, the complaint can reasonably be construed as alleging causes of action which are not time-barred ( see, Emord v Emord, 193 AD2d 775 [Second Dept., 1993]) and which, accordingly, should not be dismissed on Statute of Limitations grounds ( id.).
As to the Statute of Frauds, the applicable section of the General Obligations Law (§ 5-703) also provides that:
4. Nothing contained in this section abridges the powers of the courts of equity to compel the specific performance of agreements in cases of part performance.
(GOL § 5-703; see, also Avitabile v Silvestri , 3 Misc 3d 393, 399, 773 NYS2d 275, 280 [Suffolk Dist Ct 2004]).
In this case, the evidence strongly supports the contention that the plaintiff did not dedicate the land in question to the County for no consideration. Indeed, the affidavit of the plaintiff, the need for land for customer parking, the statements made at the August 2002 Legislative meeting, the obtaining of appraisals of substitute parcels at the plaintiff's expense — all of this lends itself to the conclusion that the providing of substitute parcels was "singularly referable to [an] oral contract, because no other scenario rationally explains why" the plaintiff and the County would otherwise be involved in the dedication of the strip of land for no consideration ( see, Panetta v. Kelly , 17 AD3d 163 [First Dept., 2005], lv dismissed 5 NY3d 783.
Moreover, as observed in Osterweil v Faldo Rizzo, 113 Misc 395, 398 [New York Mun. Ct., 1920]), "A Court of equity has always been ready to enforce a parole agreement where a party shows he has relied upon the agreement and has done . . . acts in such reliance or that it has been partially performed" ( see, also Wilson v LaVan, 22 NY2d 131; Canda v Totten, 157 NY 281[1898]).
Such is the case here. The complaint and the plaintiff's affidavit, when taken as true in a motion to dismiss pursuant to CPLR 3211, support the existence of an oral agreement which was partially performed by the plaintiff as evidenced by the dedication of the lands at issue for no otherwise apparent consideration and the attempts at seeking enforcement of the purported agreement which was not repudiated until the letter of May 9, 2005.
Accordingly, it is
ORDERED that this motion (001) by the defendant for an order dismissing the complaint pursuant to CPLR 3211(a)(1), (5) and (7) is denied; and it is further
ORDERED that the parties are directed to appear for the preliminary conference pursuant to 22 NYCRR 202.8(f) scheduled for May 30, 2008 at the Supreme Court, DCM Part, Room A362, One Court Street, Riverhead, New York at 10:00 a.m.