Bakas v. Penny

70 A.D.2d 648, 417 N.Y.S.2d 8, 1979 N.Y. App. Div. LEXIS 12098

Opinion

— In an action for specific performance of an agreement to convey real property, the plaintiff appeals from an order of the Supreme Court, Suffolk County, dated August 31, 1978, which granted defendants’ motion to dismiss the complaint on the ground that the cause of action was barred by the Statute of Frauds. Order affirmed, with $50 costs and disbursements. It appears from the complaint and the affirmation and affidavit submitted in support of and in opposition to the motion to dismiss the complaint that no claim is made that either of the agreements upon which plaintiff relies were signed by the parties to be charged. Moreover, the plaintiff has failed, in the affidavit he submitted in opposition to the motion, to carry his burden of establishing that the defendants had engaged in any acts which would permit the plaintiff to invoke the doctrine of equitable estoppel. Also the plaintiff did not engage in such part performance as to be able to invoke the doctrine. It is significant that there was no definite and finalized agreement on the sale of the property in question, but only negotiations with respect thereto. Hopkins, J. P., Damiani, O’Connor and Mangano, JJ., concur.