William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh

CourtNew York Supreme Court Appellate Division
Writing for the CourtPETER B. SKELOS
Citation952 N.Y.S.2d 197,99 A.D.3d 270,2012 N.Y. Slip Op. 06211
Decision Date19 September 2012
PartiesWILLIAM J. JENACK ESTATE APPRAISERS AND AUCTIONEERS, INC., respondent, v. Albert RABIZADEH, appellant.

99 A.D.3d 270
952 N.Y.S.2d 197
2012 N.Y. Slip Op. 06211

WILLIAM J. JENACK ESTATE APPRAISERS AND AUCTIONEERS, INC., respondent,
v.
Albert RABIZADEH, appellant.

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

Sept. 19, 2012.


[952 N.Y.S.2d 198]


Daniel R. Wotman & Associates, PLLC, Great Neck, N.Y., for appellant.

Ostrer & Hoovler, P.C., Chester, N.Y. (Cynthia Dolan and Benjamin Ostrer of counsel), for respondent.


PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, ARIEL E. BELEN, and SHERI S. ROMAN, JJ.

SKELOS, J.P.

[99 A.D.3d 271]In this action, inter alia, to recover damages for breach of contract, the plaintiff, a professional auction house, alleged that the defendant, by absentee bid, entered into a contract to purchase an antique offered at a public auction, and thereafter refused to make payment for the subject antique. The question presented on this appeal is whether notations regarding the alleged[99 A.D.3d 272]sale of the antique, made by the auctioneer's clerk contemporaneously with the bidding, which referred to the defendant and the consignor of the antique only by number, were sufficient to constitute a memorandum of the sale satisfying the statute of frauds ( see

[952 N.Y.S.2d 199]

General Obligations Law § 5–701[a][6] ). We hold that General Obligations Law § 5–701(a)(6) requires that the necessary memorandum, be it in one writing or multiple writings, reveal the identity of, not merely a number assigned to, the parties to the contract.

The plaintiff, William J. Jenack Estate Appraisers and Auctioneers, Inc., was in the business of selling fine art and antiques at public auction. In addition to live bidding at the auctions, the plaintiff also accepted absentee bids, whereby either the plaintiff would bid on the absentee bidder's behalf, or the absentee bidder would bid by telephone. Absentee bidders were required to fill out an absentee bid form, indicating the lot number of any items they wished to purchase. The absentee bidder was then assigned a bidder number.

The plaintiff held a public auction on September 21, 2008. Prior to the auction, it published a catalogue of items intended to be sold at the auction, listed by lot number. Item number 193 (hereinafter the subject antique) was described as a 19th-century, “fine Russian silver/enamel covered box with gilt interior.” Prior to September 21, 2008, the plaintiff received an absentee bid form from the defendant, indicating that the defendant wished to bid on the subject antique by telephone. The form included the defendant's name, telephone numbers, address, email address, and credit card number. Preprinted language on the form advised bidders that payment on any items purchased was due within five days after the auction. The defendant was assigned bidder number 305, as indicated on the absentee bid form.

William J. Jenack served as the auctioneer for the September 21, 2008, auction, and, as per the plaintiff's custom, the Chief Clerk for the auction sat at the podium immediately adjacent to Jenack. Jenack averred that, on September 21, 2008, the Chief Clerk, upon the hammer falling, recorded, on preprinted “clerking sheets” containing the item numbers and descriptions, the amount of the successful bid for each item sold and the bidder number. For each item, the clerking sheets also contained a number assigned to the consignor of the item. The entry on the clerking sheets for the subject antique denoted that it was consigned by consignor number 428, and handwritten notations [99 A.D.3d 273]indicated that bidder number 305 successfully bid for the subject antique at a price of $400,000. The plaintiff thereafter sent an invoice to the defendant seeking payment for the subject antique. The defendant never remitted payment or took possession of the subject antique, which remained in the plaintiff's storage facility.

The plaintiff subsequently commenced the instant action to recover damages, inter alia, for breach of a contract to purchase the subject antique. The defendant moved for summary judgment dismissing the complaint, arguing that any alleged contract was unenforceable for failure to comply with the statute of frauds. The plaintiff opposed the defendant's motion and cross-moved for summary judgment on the issue of liability. The Supreme Court denied the defendant's motion and granted the plaintiff's cross motion, and, after a nonjury trial on the issue of damages, entered judgment in favor of the plaintiff and against the defendant in the principal sum of $402,398. Because we conclude that the statute of frauds was not satisfied, we reverse the judgment, grant the defendant's motion for summary judgment dismissing the complaint, and deny the plaintiff's cross motion for summary judgment on the issue of liability.

General Obligations Law § 5–701(a)(6) provides:

“ § 5–701. Agreements required to be in writing

[952 N.Y.S.2d 200]

“a. Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent ...

“6. Notwithstanding section 2–201 of the uniform commercial code, if the goods be sold at public auction, and the auctioneer at the time of the sale, enters in a sale book, a memorandum specifying the nature and price of the property sold, the terms of the sale, the name of the purchaser, and the name of the person on whose account the sale was made, such memorandum is equivalent in effect to a note of the contract or sale, subscribed by the party to be charged therewith” (emphasis added).

Here, in support of his motion for summary judgment, the defendant submitted the auctioneer's “clerking sheets,” on which a memorandum was made at the time of sale, containing a description of the subject antique, the amount of the defendant's winning bid, and notations indicating that the subject antique [99 A.D.3d 274]was consigned by “# 428” and purchased by bidder “# 305.” The defendant argues that this memorandum was insufficient to satisfy the statute of frauds because it failed to specify the name of the purchaser and “the name of the person on whose account the sale was made” ( id.).

“The statute of frauds does not require the ‘memorandum * * * to be in one document. It may be pieced together out of separate writings, connected with one another either expressly or by the internal evidence of subject matter and occasion’ ” ( Crabtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48, 54, 110 N.E.2d 551, quoting Marks v. Cowdin, 226 N.Y. 138, 145, 123 N.E. 139;see Henry L. Fox Co. v. Kaufman Org., 74 N.Y.2d 136, 140, 544 N.Y.S.2d 565, 542 N.E.2d 1082;Taylor...

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7 practice notes
  • In re Hei Ting C.
    • United States
    • New York Supreme Court Appellate Division
    • July 17, 2013
    ...by Congress, not as we may think it should have been written ( see William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 99 A.D.3d 270, 275–276, 952 N.Y.S.2d 197;Puello v. Bureau of Citizenship & Immigration Servs., 511 F.3d 324, 327 [2d Cir.] ). [109 A.D.3d 108]Finally, we ......
  • OneWest Bank v. Davies, No. 16638–11.
    • United States
    • United States State Supreme Court (New York)
    • February 22, 2013
    ...evidence since neither satisfies the statute of frauds above cited ( see William J. Jenack Estate Appraisers v. Rabizadeh, 99 AD3d 270, 952 N.Y.S.2d 197 [2d Dept 2012]; Del Pozo v. Impressive Homes, Inc., 95 AD3d 1268, 945 N.Y.S.2d 368 [2d Dept 2012]; Martini v. Rogers, 6 AD3d 404, 774 N.Y.......
  • William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh
    • United States
    • New York Court of Appeals
    • December 17, 2013
    ...the person on whose account the sale was made,” as required by the statute, and Jenack failed to raise a triable issue as to this matter (99 A.D.3d 270, 278, 952 N.Y.S.2d 197 [2012] ). This Court granted Jenack leave to appeal (20 N.Y.3d 856, 959 N.Y.S.2d 692, 983 N.E.2d 771 [2013] ). On ap......
  • William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh
    • United States
    • New York Court of Appeals
    • December 17, 2013
    ...the person on whose account the sale was made,” as required by the statute, and Jenack failed to raise a triable issue as to this matter (99 A.D.3d 270, 278, 952 N.Y.S.2d 197 [2012] ). This Court granted Jenack leave to appeal (20 N.Y.3d 856, 959 N.Y.S.2d 692, 983 N.E.2d 771 [2013] ). On ap......
  • Request a trial to view additional results
7 cases
  • In re Hei Ting C.
    • United States
    • New York Supreme Court Appellate Division
    • July 17, 2013
    ...by Congress, not as we may think it should have been written ( see William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 99 A.D.3d 270, 275–276, 952 N.Y.S.2d 197;Puello v. Bureau of Citizenship & Immigration Servs., 511 F.3d 324, 327 [2d Cir.] ). [109 A.D.3d 108]Finally, we ......
  • OneWest Bank v. Davies, No. 16638–11.
    • United States
    • United States State Supreme Court (New York)
    • February 22, 2013
    ...evidence since neither satisfies the statute of frauds above cited ( see William J. Jenack Estate Appraisers v. Rabizadeh, 99 AD3d 270, 952 N.Y.S.2d 197 [2d Dept 2012]; Del Pozo v. Impressive Homes, Inc., 95 AD3d 1268, 945 N.Y.S.2d 368 [2d Dept 2012]; Martini v. Rogers, 6 AD3d 404, 774 N.Y.......
  • William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh
    • United States
    • New York Court of Appeals
    • December 17, 2013
    ...the person on whose account the sale was made,” as required by the statute, and Jenack failed to raise a triable issue as to this matter (99 A.D.3d 270, 278, 952 N.Y.S.2d 197 [2012] ). This Court granted Jenack leave to appeal (20 N.Y.3d 856, 959 N.Y.S.2d 692, 983 N.E.2d 771 [2013] ). On ap......
  • William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh
    • United States
    • New York Court of Appeals
    • December 17, 2013
    ...the person on whose account the sale was made,” as required by the statute, and Jenack failed to raise a triable issue as to this matter (99 A.D.3d 270, 278, 952 N.Y.S.2d 197 [2012] ). This Court granted Jenack leave to appeal (20 N.Y.3d 856, 959 N.Y.S.2d 692, 983 N.E.2d 771 [2013] ). On ap......
  • Request a trial to view additional results

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