150 A.D.2d 358 | N.Y. App. Div. | 1989
In an action, inter alia, for an equitable accounting and to impose a constructive trust, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Dowd, J.), dated February 19, 1987, which granted the defendants’ motion pursuant to CPLR 3211 (a) (5) and (7) to dismiss the complaint and (2) so much of an order of the same court, dated November 12, 1987, as, upon reargument, adhered to so much of its prior determination as dismissed the first, fourth and fifth causes of action.
Ordered that the appeal from the order dated February 19, 1987, is dismissed, without costs or disbursements, as that order was superseded by the order dated November 12, 1987, made upon reargument; and it is further,
Ordered that the order, dated November 12, 1987, is reversed insofar as appealed from, on the law, so much of the order dated February 19, 1987, as dismissed the first, fourth and fifth causes of action is vacated, and those branches of the
The plaintiff commenced this action to recover his share of the net proceeds received by the defendants from the sale of an apartment building located at 2720 Foster Avenue in Brooklyn. The plaintiff seeks the specific performance of an oral agreement for a joint venture to hold and manage real property. Pursuant to this agreement, the defendants allegedly agreed to convey a 50% interest in the subject apartment building to the plaintiff in return for the plaintiff’s services as managing agent and his payment of $50,000 ($6,000 down and a note for $44,000 at 16% interest, payable in quarter-annual installments of $2,250). Two joint venture agreements were drafted, but neither was subscribed by the defendants. On October 23, 1980, the plaintiff allegedly tendered a $6,000 check and a promissory note in the sum of $44,000, bearing interest at 16%, which defendants accepted. On November 1, 1980, the plaintiff commenced his duties as managing agent and, thereafter, furnished checks to the defendants in the sum of $2,250 or a multiple thereof, in reduction of the principal and interest due under the promissory note. By August 1985 when the defendants, with the plaintiff’s consent, sold the property to a third party, the plaintiff had paid the defendants a total of $46,500. After the defendants rescinded their promise to account to the plaintiff for his share of the sale proceeds, the plaintiff commenced the instant action.
By order dated February 19, 1987, the court granted the defendants’ motion to dismiss the first, second, third and fifth causes of action as barred by the Statute of Frauds pursuant to CPLR 3211 (a) (5), and dismissed the fourth cause of action on the ground it failed to state a cause of action pursuant to CPLR 3211 (a) (7). Thereafter, by order dated November 12, 1987, upon reargument, the court granted leave to replead the second cause of action sounding in conversion and the third cause of action for restitution of moneys the plaintiff paid to the defendants.
We agree with the court’s determination that an oral agreement for a joint venture, which has, as its object, the conveyance of an interest in real property from one venturer to another is a contract subject to the Statute of Frauds (Najjar v National Kinney Corp., 96 AD2d 836; Pounds v Egbert, 117 App Div 756, 759). However, a party’s partial performance of an oral agreement conveying an interest in real property will be deemed sufficient to take that contract out of the Statute of Frauds if it is demonstrated that the acts constituting partial
Lastly, we find that the plaintiff also stated a cause of