62 A.D.2d 1161 | N.Y. App. Div. | 1978
Order, insofar as it denies defendant’s motion for summary judgment reversed, with costs, motion granted and complaint dismissed. Memorandum: Defendant is a domestic corporation which was engaged in the business of distributing replacement parts for foreign automobiles. For several years prior to January, 1977 plaintiff was an employee of defendant. On January 20,1977 plaintiff commenced this action by service of a complaint which set forth three causes of action. In his first and second causes of action, plaintiff claims that an agreement was entered into between himself and defendant, whereby in return for selling a number of defendant’s stores, it agreed to sell to plaintiff a store consisting of both real and personal property located on Harlem Road in Cheektowaga. In his first cause of action plaintiff seeks specific performance and in his second cause of action, in the alternative, he seeks damages representing lost profits due to defendant’s failure to perform under the agreement. In his third cause of action, plaintiff seeks damages representing the reasonable value of his services in securing buyers for defendant’s stores which were beyond the scope of his employment. Defendant denies the essential allegations of the complaint and sets forth as an affirmative defense that the alleged agreement was neither in writing nor subscribed by an authorized agent and is, therefore, unenforceable. Defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for an order dismissing the affirmative defense. It is from the order of Special Term denying their respective motions that defendant appeals and plaintiff cross-appeals. For plaintiff to succeed on either of his first two causes of action, he must prove the existence of a writing constituting at least a note or memorandum of the agreement alleged thereunder (General Obligations Law, § 5-703, subd 2; Uniform Commercial Code, § 2-201, subd [1]). Moreover, under both Statute of Fraud sections, there is the requirement that the signature of the party against whom enforcement is sought appear on the writing. This name, written or printed, "is not to be reckoned as a signature unless inserted or adopted with an intent, actual or apparent, to authenticate the writing * * * Whether such an intent is to be inferred will be at times a question of law and at others one of fact, according to the circumstances” (Mesibov, Glinert & Levy Inc. v Cohen Bros. Mfg. Co., 245 NY 305, 310; see 56 NY Jur, Statute of Frauds, § 221). Here, the only writing offered by plaintiff constituting a note or memorandum of the alleged agreement is a letter which he prepared and addressed to defendant’s attorney containing certain terms of a proposed sale of one of defendant’s stores to him. There was no mention in this letter of any obligation on plaintiff’s part to sell a number of defendant’s stores in return for the right to purchase defendant’s Cheektowaga store. This letter was initially received by defendant’s president, Michael Pace, who struck out the words "Consented To” at the bottom of it and wrote a note on it to defendant’s attorney to the effect that the terms set forth in the letter were subject to his legal advice and placed his signature on the letter. We find as a matter of law that the signature of defendant’s president was neither made with the intent to authenticate the