Scarvalone v. Kowalewicz

26 A.D.2d 885, 274 N.Y.S.2d 217, 1966 N.Y. App. Div. LEXIS 3222

Opinion

Reynolds, J.

Appeal from an order of the Supreme Court, Sullivan County, denying appellants’ motion to dismiss the complaint pursuant to CPLR 3211 (subd. [a], par. 7). Respondent in the instant action seeks various alternate forms of relief with respect to certain real property of which appellants are the record owners. Appellants here seek dismissal of respondent’s complaint asserting first that the complaint only alleges dealings with one of the respondent co-owners. However, the complaint also clearly alleges that the respondent with whom such dealing was conducted was also acting for and on behalf of his corespondent. Thus issues of agency are raised which cannot be resolved on the instant motion. Appellants’ remain ing arguments seek to interject the Statute of Frauds as a bar to the relief sought. The Statute of Frauds, however, is strictly a defense (Sam v. Farkas, 11 A D 2d 1079; Nisofsky v. Simon, 280 App. Div. 874) the efficacy of which depends to a considerable extent on factual issues which assuming under the more liberal practice could be considered (see CPLR 3211, subd. [e]), could not be passed on in the instant case in any event since there has been presented no extrinsic matter in affidavit form or otherwise to challenge the truth of the allegations setting up the cause of action (see, 4 Weinstein-Korn-Miller, N. Y. Civ. Prac., pars. 3211.37-3211.44). Order affirmed, with costs. Gibson, P. J., Herlihy and Staley, Jr., JJ., concur; Taylor, J., not voting.