ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Monday, July 17, 2006

SOF Bites Plaintiff

New_york_flag_11 An alleged oral deal to buy a corporation whose only asset was a piece of real property was subject to the statute of frauds, said the New York Appellate Division in a recent decision.  In the case, the defendant had proffered a written stock purchase agreement to the plaintiff.  A clause in the agreement provided:  "This Contract shall not be binding upon the Seller until such time as Seller has executed the Contract and delivered a fully executed copy of the Contract to Buyer or Buyer's attorney."  Seller subsequently decided to take a better deal and Buyer sued, claiming an oral contract.  It argued that its attempts to re-zone the property were a part performance of the deal.  Plaintiff lost at the trial court, got hit with sanctions there, then appealed.

Bad move.  The Appellate Division flatly rejected the legal claim in a per curiam opinion:

In view of defendants' clear showing of an intent not to be bound without a formal contract and the absence of credible evidence tending to show a meeting of the minds on all material terms, the action and filing of the notice of pendency were completely without merit in law.

Even if Plaintiff had got the property rezoned, it would not amount to a part performance that would make the statute of frauds inapplicable.  "Rather, plaintiff's unilateral conduct, standing alone, could easily be seen as the premature acts of an overly optimistic potential buyer . . . ." 

The court found both the original claim and the appeal of the sanctions so frivolous that on its own motion it socked the plaintiff with more sanctions, sending it back to the trial court to take evidence on Defendant's legal fees.

Yenom Corp. v. 155 Wooster Street Inc., 2006 N.Y. Slip Op. 05732 (1st Dept. July 13, 2006).

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