Luckel v. Kolinsky

• Decision Date: 19 April 1990
• Citation: Luckel v. Kolinsky, 554 N.Y.S.2d 374, 160 A.D.2d 1172 (N.Y. App. Div. 1990)
• Parties: Peter LUCKEL, Respondent, v. Robert KOLINSKY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 374

554 N.Y.S.2d 374

160 A.D.2d 1172

Peter LUCKEL, Respondent, v. Robert KOLINSKY, Appellant.

Supreme Court, Appellate Division Third Department.

April 19, 1990.

Rider, Weiner & Melchiori (Moacyr R. Calhelha, of counsel), Newburgh, for appellant.

McGuirk, Levinson, Zeccola, Seaman, Reineke & Ornstein (Paul N. Ornstein, of counsel), Central Valley, for respondent.

Before MAHONEY, P.J., and KANE, CASEY, MECURE and HARVEY, JJ.

CASEY, Justice.

Appeal (transferred to this court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Jiudice, J.), entered November 16, 1988 in Dutchess County, which, inter alia, denied defendant's motion to dismiss the complaint.

For a first cause of action the complaint alleges that on or about January 12, 1987, plaintiff entered into an agreement with defendant whereby defendant was to convey to plaintiff 50% of defendant's interest in certain lands, in consideration of plaintiff's entering into a joint venture with defendant to erect houses on the properties; that plaintiff did enter into said joint venture and commenced erecting houses on certain of the properties; and that plaintiff's performance and plaintiff's readiness to continue to perform require defendant to specifically perform his part of the contract. A second cause of action seeks damages for the contract's breach. Prior to the expiration of the time to answer, defendant moved for dismissal of the complaint pursuant to CPLR 3211(a)(5) and (7) on the grounds that the complaint failed to state a cause of action and that the two causes of action alleged therein were barred by the Statute of Frauds. Plaintiff cross-moved for summary judgment on the ground that no triable issue of fact existed.

Supreme Court denied both motions. Supreme Court held that accepting the facts alleged in the complaint as true, viable causes of action were stated. With respect to plaintiff's cross motion for summary judgment, Supreme Court denied that motion without prejudice to a subsequent renewal because it was made before the joinder of issue and, therefore, was premature.

Defendant has appealed from the order denying his motion to dismiss the complaint. The criterion applied on a motion to dismiss is whether the complaint as a pleading states any cause of action cognizable at law which is discernible from the factual allegations contained within the four corners of the complaint (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401...