Jo-Cook Realty Corp. v. Lorge

Appellate Division of the Supreme Court of New York

Jo-Cook Realty Corp. v. Lorge

133 A.D.2d 447, 519 N.Y.S.2d 664, 1987 N.Y. App. Div. LEXIS 49918

Appellate Division of the Supreme Court of the State of New York·Decided September 28, 1987·Published·Cited by 1 cases

Opinion

— In an action for specific performance of a contract for the sale of real property, the plaintiff appeals from so much of a judgment of the Supreme Court, Kings County (I. Aronin, J.), dated July 9, 1986, which after a nonjury trial, dismissed its complaint and denied its posttrial motion to conform the pleadings to the proof.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

Assuming, arguendo, that it was improper for the trial court to deny the plaintiffs motion to conform the pleadings to the proof which tended to show that a previously rescinded written contract between the parties had been orally renewed, the defendants raised the affirmative defense of the Statute of Frauds with respect to the alleged oral contract. The bar of the Statute of Frauds having been interposed, the court could not find that the purported oral contract between the parties to sell real property was valid (see, General Obligations Law § 5-703 [2]). Nor should the defendants be equitably estopped from denying that a valid contract existed under the facts of this case (see, Huggins v Castle Estates, 36 NY2d 427, 433). Mollen, P. J., Mangano, Brown and Lawrence, JJ., concur.

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— In an action for specific performance of a contract for the sale of real property, the plaintiff appeals from so much of a judgment of the Supreme Court, Kings County (I. Aronin, J.), dated July 9, 1986, which after a nonjury trial, dismissed its complaint and denied its posttrial motion to conform the pleadings to the proof.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

Assuming, arguendo, that it was improper for the trial court to deny the plaintiffs motion to conform the pleadings to the proof which tended to show that a previously rescinded written contract between the parties had been orally renewed, the defendants raised the affirmative defense of the Statute of Frauds with respect to the alleged oral contract. The bar of the Statute of Frauds having been interposed, the court could not find that the purported oral contract between the parties to sell real property was valid (see, General Obligations Law § 5-703 [2]). Nor should the defendants be equitably estopped from denying that a valid contract existed under the facts of this case (see, Huggins v Castle Estates, 36 NY2d 427, 433). Mollen, P. J., Mangano, Brown and Lawrence, JJ., concur.

Jo-Cook Realty Corp. v. Lorge, 133 A.D.2d 447, 519 N.Y.S.2d 664, 1987 N.Y. App. Div. LEXIS 49918 (N.Y. Ct. App. 1987).

Pincite

133 A.D.2d 447 (Jo-Cook Realty Corp. v. Lorge) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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