Messner Vetere Berger McNamee Schmetterer Euro Rscg Inc. v. Aegis Group Plc

186 F.3d 135, 1999 U.S. App. LEXIS 9204, 1999 WL 543856

• Court: Court of Appeals for the Second Circuit
• Decided: May 12, 1999
• Docket: 1997
• Status: Published

Opinion

PER CURIAM.

Plaintiff-appellant Messner Vetere Berger McNamee Schmetterer Euro RSCG Inc. (“Messner Vetere”) appeals from a judgment of the United States District Court for the Southern District of New York (Miriam Goldman Cedarbaum, Judge), dismissing its claims against Aegis Group Pic (“Aegis”) for breach of an alleged oral agreement to assign a written commercial lease on the ground that Messner Vetere failed to state a claim that would invoke the “part performance” exception to New York’s Statute of Frauds. See Messner Vetere Berger McNamee Schmetterer EURO RSCG, Inc. v. Aegis Group PLC, 974 F.Supp. 270 (S.D.N.Y.1997).

On appeal, we certified two questions concerning the scope of the part performance doctrine to the New York Court of Appeals. See Messner Vetere Berger McNamee Schmetterer Euro RSCG, Inc. v. Aegis Group Plc, 150 F.3d 194, 202 (2d Cir.1998). The questions certified were:

I. Whether the part performance doctrine is adequately invoked at the pleading stage by a claim that the plaintiff “took no action” with respect to a pre-existing written agreement, relying on an oral promise allegedly made by the defendant to the plaintiff that the defendant would act in place of the plaintiff and fulfill all of the plaintiffs obligations under that agreement.

II. Whether the plaintiffs allegation of part performance by the defendant alone states a claim under the part performance doctrine.

Id.

The New York Court of Appeals has answered the certified questions in the negative and held that “[i]n the circumstances presented, plaintiff cannot claim the benefit of the part performance doctrine to avoid the Statute of Frauds.” Messner Vetere Berger McNamee Schmetterer Euro RSCG, Inc. v. Aegis Group PLC, 93 N.Y.2d 229, 689 N.Y.S.2d 674, 711 N.E.2d 953, (1999). No other issues remain to be resolved. Accordingly, we conclude that Messner Vetere has failed to state a claim and that the dismissal of its complaint by the district court pursuant to Fed.R.Civ.P. 12(b)(6) was appropriate.

The judgment of the district court is affirmed.