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BERNARD KRINSKY v. NORMAN K. WINSTON ET AL. (04/21/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


April 21, 1969

BERNARD KRINSKY, RESPONDENT,
v.
NORMAN K. WINSTON ET AL., APPELLANTS

In an action by a partner or joint adventurer against his other partners or joint adventurers and others, inter alia, to adjudge that the partnership or venture is entitled to certain land, pursuant to the terms of oral agreements, defendants appeal from an order of the Supreme Court, Suffolk County, dated June 17, 1968, which denied their motion for summary judgment dismissing the complaint on the ground that plaintiff's claims are barred by the applicable Statutes of Fraud (General Obligations Law, § 5-701, subd. 1; § 5-703).

Christ, Acting P. J., Brennan, Rabin, Hopkins and Kleinfeld, JJ., concur.

Seemingly, the oral agreements relied upon come within the statutory provision which rendered an oral agreement void if its performance is not to be completed before the end of a lifetime (Personal Property Law, former § 31, subd. 1; now General Obligations Law, § 5-701, subd. 1). However, in our opinion, plaintiff should be afforded a plenary trial to fully explore and develop the extensive and complex real estate dealings of the parties as disclosed in the course of the alleged joint venture. There exists the possibility that proof adduced at a trial may entitle plaintiff to some relief not falling within the interdiction of the statute. In view of the prior intimate relationship between the parties, we do not feel that plaintiff should be foreclosed at the summary judgment stage (Wilson v. La Van, 22 N.Y.2d 131, 135; Matter of Phalen v. Theatrical Protective Union No. 1, 22 N.Y.2d 34, 41; Sanger v. French, 157 N. Y. 213; cf. Mattikow v. Sudarsky, 248 N. Y. 404, 407-408; Dayvault v. Baruch Oil Corp., 211 F. 2d 335).

Disposition

Order affirmed, without costs.

19690421

© 1998 VersusLaw Inc.



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