You are here: / / THE PARTIAL PAYMENTS MADE TOWARD THE DOWN PAYMENT ON THE REAL ESTATE PURCHASE...
,

THE PARTIAL PAYMENTS MADE TOWARD THE DOWN PAYMENT ON THE REAL ESTATE PURCHASE CONTRACT DID NOT CONSTITUTE PART PERFORMANCE OF THE ALLEGED ORAL MODIFICATION OF THE AGREEMENT; THE STATUTE OF FRAUDS RENDERED THE ALLEGED ORAL MODIFICATION UNENFORCEABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the alleged oral modification of the real estate purchase contract was unenforceable pursuant to he statute of frauds. The original contract called for a $750,000 down payment by a specified date. The payment was not made. Plaintiff argued defendant had orally agreed to take installment payments toward the down payment and two partial payments had in fact been made and accepted. Plaintiff sued for specific performance of the contract. The defendant asserted the statute of frauds affirmative defense. The Second Department held that the two payments did not constitute part performance which would excuse the absence of a writing:

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” … . Unequivocally referable conduct is conduct that is “inconsistent with any other explanation” … . It is insufficient “that the oral agreement gives significance to plaintiff’s actions” … . “Rather, the actions alone must be ‘unintelligible or at least extraordinary,’ explainable only with reference to the oral agreement” … . “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 perpetrate a fraud by using the statute as a sword rather than a shield” … . S&G Golden Estates, LLC v New York Golf Enters., Inc., 2023 NY Slip Op 02548, Second Dept 5-10-23

Practice Point: In order to constitute part performance of a contract such that the statute of frauds does not apply, the part performance must be inconsistent with any other explanation. The actions must be explainable only with reference to the oral agreement (not the case here).

 

You might also like
Criteria for Common Carrier Liability for Injury Caused by a Sudden Stop Explained (Not Met Here)
THE PETITION SEEKING LEAVE TO COMMENCE AN ACTION AGAINST THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) IN THIS PEDESTRIAN ACCIDENT CASE SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING, THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE NOTICE CONDITIONS PRECEDENT TO THE ACTION WERE MET (SECOND DEPT).
Circumstances When Hospital May Be Liable for Actions of Non-Employee Doctor Explained
NOXIOUS ODORS FROM A PLASTIC-MANUFACTURING FACILITY CANNOT BE THE BASIS OF A NEGLIGENCE CAUSE OF ACTION BECAUSE THE ODORS HAVE NOT CAUSED PHYSICAL INJURY OR PROPERTY DAMAGE (ECONOMIC LOSS IS NOT SUFFICIENT); THE NOXIOUS ODORS DO SUPPORT A PRIVATE NUISANCE CAUSE OF ACTION EVEN THOUGH A LARGE NUMBER OF PRIVATE CITIZENS IN THIS CLASS ACTION LAWSUIT ARE AFFECTED (SECOND DEPT).
PURCHASE AGREEMENT DID NOT ALLOW BUYERS TO TERMINATE THE CONTRACT DURING THE CONTINGENCY PERIOD, BUYERS’ ACTION TO RECOVER THE DOWN PAYMENT PROPERLY DISMISSED (SECOND DEPT).
FOR CAUSE CHALLENGE TO A JUROR IN THIS SEX-OFFENDER CIVIL COMMITMENT ACTION SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED 2ND DEPT.
CONVICTIONS OF INCLUSORY CONCURRENT COUNTS OF AGGRAVATED UNLICENSED OPERATION OF A MOTOR VEHICLE FIRST DEGREE VACATED (SECOND DEPT).
Joint Custody Inappropriate Where Parents Can Not Cooperate​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

IN THIS TRAFFIC ACCIDENT CASE WHERE “SERIOUS INJURY” WAS AN ISSUE,... WHERE, AS HERE, A PARTY IS A DEFENDANT IN ONE ACTION AND A PLAINTIFF IN ANOTHER...