Bayside Health Club, Inc. v. Weidel

170 A.D.2d 474, 565 N.Y.S.2d 560, 1991 N.Y. App. Div. LEXIS 2025

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 11, 1991
• Status: Published

Opinion

In an action, inter alia, for specific performance of a contract to purchase a business, the defendants Charles Weidel and Peter Caruso appeal from so much of an order of the Supreme Court, Queens County (Rosenzweig, J.), dated September 13, 1989, as denied their motions pursuant to CPLR 3211 (a) (5) and (7) to dismiss the complaint insofar as asserted against them.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motions of the appellants to dismiss the complaint insofar as asserted against them are granted.

Negotiations took place for the sale of the plaintiffs’ business to the appellants and, according to the plaintiffs, a final oral agreement was reached as to the essential material terms of the sale. The appellants disputed that any agreement between the parties was ever reached, and they ultimately refused to proceed with the purchase.

The alleged oral agreement included a provision for the terms of payment of the purchase price, which provision stipulated that the plaintiffs would take back a purchase money mortgage, at nine percent interest, over a four-year term. Because the oral agreement could not be performed within one year from its making, it became subject to the Statute of Frauds requirement of a writing (see, General Obligations Law § 5-701; Beldengreen v Ashinsky, 139 Misc 2d 766). Consequently, the oral agreement is unenforceable under, the Statute of Frauds, and we grant the appellants’ motions to dismiss the complaint pursuant to CPLR 3211 (a) (5). Kunzeman, J. P., Kooper, Fiber and O’Brien, JJ., concur.