Rice v. Dylan

Appellate Division of the Supreme Court of New York

Rice v. Dylan

39 A.D.2d 809, 332 N.Y.S.2d 484, 1972 N.Y. App. Div. LEXIS 4483

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 25, 1972

StatusPublished

Cited by3 cases

This text of 39 A.D.2d 809 (Rice v. Dylan) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rice v. Dylan, 39 A.D.2d 809, 332 N.Y.S.2d 484, 1972 N.Y. App. Div. LEXIS 4483 (N.Y. Ct. App. 1972).

Pincite

Opinion

Appeal by the defendant from an order of the Supreme Court at Special Term, entered in Ulster County on October 15, 1971, which denied a motion by the defendant for dismissal of the complaint pursuant to CPLR 3126 and partially granted a motion by the plaintiff to strike the defendant’s answer. The motion for relief pursuant to CPLR 3126 and the partial grant of such motion renders summary judgment a premature remedy at the present posture of the proceedings. Order affirmed, with costs. Herlihy, P. J., Staley, Jr., and Simons, JJ., concur; G-reenblott and Sweeney, JJ., dissent and vote to reverse in the following memorandum by Greenblott, J.: The majority’s conclusion that summary judgment is a premature remedy is, in my opinion, erroneous. Plaintiff contends that, based upon defendant’s oral agreement to purchase her property for $21,000, she obtained a release from a prior purchaser who had contracted to purchase the property for $20,000 and, to vacate the premises by the agreed date, she was forced to sell much of her antique furniture at a distress sale. Plaintiff thereafter sold the property for substantially less than $21,000 and instituted this action seeking damages for breach of contract. In seeking to establish an oral contract for the purchase of real property, plaintiff is met by the Statute of Frauds (General Obligations Law, § 5-703). However, despite the bar of the Statute of Frauds, in eases of part performance courts of equity have the power to compel specific performance of oral agreements (see General Obligations Law, § 5-703, subd. 4; Wilson v. La Van, 22 N I 2d 131; Burns v. McCormick, 233 H. Y. 230; Walter v. Hoffman, 267 H. Y. 365; see, also, 35 Brooklyn L. Rev. 301). Plaintiff’s action here, however, is not an equitable action. It is an action seeking damages and equitable relief is not available (see Baldwin v. Palmer, 10 H. Y. 232; Longo v. Shaker Hgts. Development, 11 Mise 2d 278, app. dsmd. 10 A D 2d 784). Therefore, even if such contract existed and plaintiff’s actions were unequivocally referable to an agreement to convey (thereby establishing in plaintiff’s favor all questions of fact), defendant’s motion for dismissal of the complaint should have been granted.

Free access — add to your briefcase to read the full text and ask questions with AI

Appeal by the defendant from an order of the Supreme Court at Special Term, entered in Ulster County on October 15, 1971, which denied a motion by the defendant for dismissal of the complaint pursuant to CPLR 3126 and partially granted a motion by the plaintiff to strike the defendant’s answer. The motion for relief pursuant to CPLR 3126 and the partial grant of such motion renders summary judgment a premature remedy at the present posture of the proceedings. Order affirmed, with costs. Herlihy, P. J., Staley, Jr., and Simons, JJ., concur; G-reenblott and Sweeney, JJ., dissent and vote to reverse in the following memorandum by Greenblott, J.: The majority’s conclusion that summary judgment is a premature remedy is, in my opinion, erroneous. Plaintiff contends that, based upon defendant’s oral agreement to purchase her property for $21,000, she obtained a release from a prior purchaser who had contracted to purchase the property for $20,000 and, to vacate the premises by the agreed date, she was forced to sell much of her antique furniture at a distress sale. Plaintiff thereafter sold the property for substantially less than $21,000 and instituted this action seeking damages for breach of contract. In seeking to establish an oral contract for the purchase of real property, plaintiff is met by the Statute of Frauds (General Obligations Law, § 5-703). However, despite the bar of the Statute of Frauds, in eases of part performance courts of equity have the power to compel specific performance of oral agreements (see General Obligations Law, § 5-703, subd. 4; Wilson v. La Van, 22 N I 2d 131; Burns v. McCormick, 233 H. Y. 230; Walter v. Hoffman, 267 H. Y. 365; see, also, 35 Brooklyn L. Rev. 301). Plaintiff’s action here, however, is not an equitable action. It is an action seeking damages and equitable relief is not available (see Baldwin v. Palmer, 10 H. Y. 232; Longo v. Shaker Hgts. Development, 11 Mise 2d 278, app. dsmd. 10 A D 2d 784). Therefore, even if such contract existed and plaintiff’s actions were unequivocally referable to an agreement to convey (thereby establishing in plaintiff’s favor all questions of fact), defendant’s motion for dismissal of the complaint should have been granted.

Cite This Page — Counsel Stack

Bluebook (online)

39 A.D.2d 809, 332 N.Y.S.2d 484, 1972 N.Y. App. Div. LEXIS 4483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rice-v-dylan-nyappdiv-1972.

Opinion

Related

Cite This Page — Counsel Stack