Tingue v. Spencer

Opinion

Tingue v Spencer

2026 NY Slip Op 04626

July 24, 2026

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

GENE C. TINGUE, PLAINTIFF-APPELLANT,

v

LESLIE A. SPENCER, MARTHA GOMEZ, DEFENDANTS-RESPONDENTS, ET AL., DEFENDANT.

Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department

Decided on July 24, 2026

424 CA 25-00314

Present: Lindley, J.P., Curran, Ogden, Nowak, And Delconte, JJ.

FRIEDMAN & RANZENHOFER, P.C., AKRON (MICHAEL H. RANZENHOFER OF COUNSEL), FOR PLAINTIFF-APPELLANT.

Appeal from an order of the Supreme Court, Cattaraugus County (Terrence M. Parker, A.J.), entered January 25, 2025, in an action for specific performance of a contract. The order, inter alia, dismissed the complaint, granted in part a counterclaim of defendant Martha Gomez and awarded that defendant money damages.

[*1]

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the award to defendant Martha Gomez of $50,000 for property damage and attorney's fees, and as modified the order is affirmed without costs.

Memorandum: In this action seeking, inter alia, specific performance of a purported "purchase contract" (contract), plaintiff appeals from an order entered following a bench trial that, inter alia, dismissed the complaint, granted that part of defendant Martha Gomez's third counterclaim seeking plaintiff's eviction, and awarded Gomez money damages and attorney's fees. Contrary to plaintiff's contention, we conclude that Supreme Court properly determined that the contract was unenforceable for failure to comply with the statute of frauds (see Pino v Harnischfeger, 42 AD3d 980, 984 [4th Dept 2007]; see also Congdon v Everett, 63 AD3d 1541, 1541 [4th Dept 2009]; see generally Cobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d 475, 482 [1989],rearg denied 75 NY2d 863 [1990], cert denied 498 US 816 [1990]). We agree with plaintiff, however, that Gomez failed to establish the monetary value of any damages (see Patton v Modern Asian, Inc., 208 AD3d 1491, 1494 [3d Dept 2022]; see also Esposito v Larig, 241 AD3d 782, 786 [2d Dept 2025]), and we therefore modify the order by vacating the award to Gomez of $50,000 for property damage and attorney's fees.

We have reviewed plaintiff's remaining contentions and conclude that none warrants further modification or reversal of the order.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court