Pinkava v. Yurkiw

• Decision Date: 21 July 2009
• Docket Number: 2008-02588.
• Citation: 882 N.Y.S.2d 687,2009 NY Slip Op 05953,64 A.D.3d 690
• Parties: STEVEN G. PINKAVA et al., Respondents, v. ANNA YURKIW et al., Appellants.
• Court: New York Supreme Court — Appellate Division

64 A.D.3d 690

882 N.Y.S.2d 687

2009 NY Slip Op 05953

STEVEN G. PINKAVA et al., Respondents, v. ANNA YURKIW et al., Appellants.

2008-02588.

Appellate Division of the Supreme Court of New York, Second Department.

Decided July 21, 2009.

In an action, inter alia, for specific performance of an oral agreement to convey an interest in real property, the defendants appeal from an order of the Supreme Court, Queens County (Dorsa, J.), entered January 15, 2008, which denied their motion, in effect, to dismiss the first cause of action pursuant to CPLR 3211 (a) (7), for summary judgment dismissing the second through twelfth causes of action on the ground that they were barred by the statute of frauds, and for summary judgment on the counterclaims.

Ordered that the order is affirmed, with costs.

The plaintiff Sofia Pinkava and the defendant Anna Yurkiw are sisters. In May 1968 Sofia and her husband, the plaintiff Steven G. Pinkava (hereinafter together the Pinkavas), entered into a joint venture with Anna and her late husband George Yurkiw (hereinafter together the Yurkiws), to purchase and manage an apartment building for profit. In May 1968 the Pinkavas and the Yurkiws together purchased an apartment building located in Astoria, Queens. Each couple had a one-half ownership interest in the property. The Pinkavas and the Yurkiws managed the building and shared in the profits derived from rents. Neither couple resided in the building.

The Pinkavas claim that in January 1998 they entered into an oral agreement with the Yurkiws whereby they would pay the Yurkiws in the sum of $150,000 over time for their interest in the property and would manage the building alone while paying off the purchase price. The Pinkavas allegedly paid the Yurkiws a total of $51,000. In December 2002 George Yurkiw died. Thereafter, the Pinkavas allegedly offered to pay Anna the balance of the purchase price, but she would not accept the money until she located her late husband's paperwork showing the balance owed by the Pinkavas. In May 2006 Anna provided the Pinkavas with a handwritten document prepared by her late husband that allegedly showed a balance due of $99,000. In reliance, the Pinkavas claim that they ordered a title search and tendered a bank check in that amount to Anna. Anna, however, refused to accept it and the Pinkavas subsequently learned that on July 6, 2006 Anna conveyed her interest in the property to her son, the defendant Mark Yurkiw. The plaintiffs then commenced this action seeking, among other things, to set aside the conveyance to Mark, to impose a constructive trust upon the Yurkiws' interest in the property, and for specific performance of the oral agreement. The defendants interposed counterclaims for, inter alia, the partition and sale of the property and an accounting.

The Supreme Court denied the defendants' motion, in effect, to dismiss the first cause of action pursuant to CPLR 3211 (a) (7), for summary judgment dismissing the second through twelfth causes of action on the ground that they were barred by the statute of frauds, and for summary judgment on the counterclaims. We affirm.

The statue of frauds prohibits the conveyance of real property without a written contract (see General Obligations Law § 5-703 [1]). While the statute of frauds empowers courts of equity to compel specific performance of agreements in cases of part performance (see General Obligations Law § 5-703 [4]), the claimed partial performance "must be unequivocally referable to the agreement" (Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229, 235 [1999]; Luft v Luft, 52 AD3d 479, 481 [2008]). It is not sufficient that the oral agreement gives significance to the plaintiff's actions. Rather, the actions alone must be "`unintelligible or at least extraordinary,' [and] explainable only with reference to the oral agreement" (Anostario v Vicinanzo, 59 NY2d 662, 664 [1983], quoting Burns v McCormick, 233 NY 230, 232 [1922]; see Adelman v Rackis, 212 AD2d 559, 561 [1995]). Significantly, the doctrine of part performance "is based on principles of equity, in particular, recognition of the fact that the purpose of the Statute of Frauds is to prevent frauds, not to enable a party to...