103 A.D.2d 789 | N.Y. App. Div. | 1984
— In an action, inter alia, seeking specific performance of an alleged oral contract for the sale of securities, defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Gowan, J.), dated October 24, 1983, as denied their motion for partial summary judgment as to the cause of action for specific performance. H Order affirmed insofar as appealed from, with costs. 11A triable issue of fact exists as to whether the undisputed payment of $11,000 by plaintiff to defendant Waterman was a sufficient partial performance unequivocally referable to the alleged oral agreement to remove the agreement from the Statute of Frauds (Uniform Commercial Code, § 8-319, subd [b]; see Burns v McCormick, 233 NY 230; Gross v Vogel, 81 AD2d 576; cf. Anostario v Vicinanzo, 59 NY2d 662). We would note that in the event plaintiff is successful in his claim of establishing the alleged oral agreement, his recovery, if any, is limited by statute to the extent of payment actually made (Uniform Commercial Code, § 8-319, subd [b]). Lazer, J. P., Brown, Boyers and Eiber, JJ., concur.
