Gross v. Chappelle

21 A.D.2d 679, 249 N.Y.S.2d 902, 1964 N.Y. App. Div. LEXIS 3843

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 11, 1964
• Status: Published

Opinion

In a vendees’ action for specific performance of a contract for the sale of real property, the defendants appeal from an order of the Supreme Court, Nassau County, dated October 2, 1963, which denied their motion for summary judgment and for cancellation of a lis pendens filed against the property. Order reversed, without costs, and motion granted; complaint dismissed and lis pendens directed to be cancelled of record. The Statute of Frauds (Real Property Law, § 259) was pleaded as a defense. The papers submitted establish that neither the contract of sale nor any note or memorandum was subscribed by the defendant vendors or by their lawful agent thereunto authorized by any writing. The complaint therefore must be dismissed (Mondrus v. Salt Haven Corp., 270 App. Div. 1030, mot. for lv. to app. den. 270 App. Div. 1046; Singer v. Klebanow, 9 Misc 2d 1016). Ughetta, Acting P. J., Kleinfeld, Christ and Hill, JJ., concur; Rabin, J., dissents and votes to affirm the order for the reasons stated by the Justice at Special Term.