Mihalko v. Blood

Decision Date21 January 1982
Citation86 A.D.2d 723,446 N.Y.S.2d 573
PartiesEmil S. MIHALKO et al., Appellants, v. Edgar C. BLOOD et al., Respondents.
CourtNew York Supreme Court — Appellate Division

Clarence D. Rappleyea, Jr., Norwich, for appellants.

James E. Downey, Norwich, for respondents.

Before MAHONEY, P. J., SWEENEY, MAIN, CASEY and MIKOLL, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court at Special Term, entered May 6, 1981 in Chenango County, which partially granted defendants' motion to dismiss the complaint.

Plaintiffs, in connection with the purchase of a 40-acre tract of land adjacent to realty owned by defendants, allegedly entered into an oral contract whereby defendants agreed to give plaintiffs a "right of way" across defendants' land so as to provide plaintiffs with access to their new property. In exchange for this "right of way", plaintiffs allegedly agreed to permit defendants to graze their cattle on the 40-acre tract and to hire defendant Edgar Blood to supervise the construction of a cabin to be built on plaintiffs' property. Plaintiffs purchased the property in March, 1979. Thereafter, in August of 1980, defendant Edgar Blood commenced an action against plaintiffs for breach of contract, essentially alleging that plaintiffs owed him money for work he had done in constructing plaintiffs' log cabin. At about the same time, defendants denied plaintiffs the use of the "right of way" across their land.

In response to that suit, plaintiffs instituted the present action setting forth five causes of action. Defendants moved to dismiss the second, third, fourth and fifth causes of action on the ground that they fail to state a cause of action (CPLR 3211, subd. par. 7) or, alternatively, that they are barred by the Statute of Frauds (CPLR 3211, subd. par. 5). Special Term (1) ordered the first cause of action, alleging a breach of contract, to be tried jointly with the action previously commenced by defendant, (2) dismissed the second, third and fourth causes of action, and (3) dismissed the fifth cause of action for slander with leave to replead. Plaintiffs' notice of appeal only challenges the dismissal of the second, third and fourth causes of action.

Initially, we note that where, as here, a motion to dismiss made under CPLR 3211 (subd. par. 7) is not converted to a summary judgment motion, affidavits may be received for the limited purpose of remedying a defective complaint (Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635-636, 389 N.Y.S.2d 314, 357 N.E.2d 970; see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17). Use of this procedural device permits judicial construction of the inartful complaint allegation of "right of way", which phrase lends itself more appropriately to the grant of a revocable license, to allege that plaintiffs acquired an easement pursuant to the oral contract, i.e., a permanent right to use defendants' property as a means of access to their land. Accordingly, we hold that the averments of the second, third and fourth causes of action are adequate to resist defendants' CPLR 3211 (subd. par. 7) motion to dismiss for failure to state a cause of action.

Turning to the alternative ground for dismissal advanced by defendants, we conclude that the complaint allegation that plaintiffs, in reliance upon defendants' representations with respect to the grant of an easement, expended the sum of $2,475 to improve the condition of defendants' access roadway may constitute "partial performance" of the alleged oral contract sufficient to immunize the complaint against dismissal on the ground that it violates the Statute of Frauds (General Obligations Law, §...

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8 cases
  • Bower v. Weisman
    • United States
    • U.S. District Court — Southern District of New York
    • December 31, 1986
    ... ... Supp. 1422 referrable to said contract.'" Mihalko v. Blood, 86 A.D.2d 723, 446 N.Y. S.2d 573, 575 (3d Dept.1982) (citation omitted). The complaint has adequately alleged partial performance ... ...
  • Spodek v. Riskin
    • United States
    • New York Supreme Court — Appellate Division
    • May 1, 1989
    ... ... Morrow Co., 63 N.Y.2d 616, 479 N.Y.S.2d 499, 468 N.E.2d 681; Milhalko v. Blood, 86 A.D.2d 723, 446 N.Y.S.2d 573). In the present posture of this case, the court erred in ruling, as a matter of law, that the plaintiff's partial ... ...
  • Pietrosanto v. NYNEX Corp.
    • United States
    • New York Supreme Court — Appellate Division
    • July 22, 1993
    ... ... Madden, 172 A.D.2d 815, 569 N.Y.S.2d 187, lv. denied 79 N.Y.2d 754, 581 N.Y.S.2d 281, 589 N.E.2d 1263; Mihalko v. Blood, 86 A.D.2d 723, 446 N.Y.S.2d 573). As correctly contended by plaintiff, "where a motion to dismiss is not converted to a summary judgment ... ...
  • Bittner v. Regan
    • United States
    • New York Supreme Court — Appellate Division
    • January 21, 1982
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