these agreements do not satisfy the applicable statutes of frauds.
Plaintiff correctly notes that the New York statutes of frauds may be satisfied by separate connected writings, not all of which must be signed. See Horn & Hardart Co. v. Pillsbury Co., 888 F.2d 8, 10-11 (2d Cir. 1989); Henry L. Fox Co. v. William Kaufman Org., 74 N.Y.2d 136, 140, 544 N.Y.S.2d 565, 542 N.E.2d 1082 (1989). Unsigned writings may supply terms of the contract, provided that the signed writing satisfies "two strict threshold requirements:" First, the signed writing must establish that a contractual relationship exists between the parties; second, the signed writing must "on its face refer to the same transaction" as the unsigned writings. Horn & Hardart Co., 888 F.2d at 11; see Scheck v. Francis, 26 N.Y.2d 466, 470, 311 N.Y.S.2d 841, 260 N.E.2d 493 (1970). In analyzing whether these threshold requirements have been met, parol evidence may not be used to supplement the writings, but may be used in order to determine whether the signed and unsigned writings are "connected." See Henry L. Fox Co., 74 N.Y.2d at 142-43; Bazak Int'l Corp. v. Mast Indus. Inc., 73 N.Y.2d 113, 118, 535 N.E.2d 633, 538 N.Y.S.2d 503 (1979); Scheck, 26 N.Y.2d at 470. Thus, "under New York law, 'compliance with [the statutes of frauds governing securities transactions] may be found if an agreement can be pieced together out of separate writings, not all of which need be signed, provided they clearly refer to the same transaction, include all items of the contract, and at least one of them bears the signature of the party.'" Kubin v. Miller, 801 F. Supp. 1101, 1121 (S.D.N.Y. 1992) (quoting APS Food Sys., Inc. v. Ward Foods, Inc., 70 A.D.2d 483, 421 N.Y.S.2d 223, 225 (1st Dept. 1979)). "All of [the terms] must be set out in the various writings presented to the court, and at least one writing, the one establishing a contractual relationship between the parties, must bear the signature of the party to be charged, while the unsigned documents must on [their] face refer to the same transaction as that set forth in the one that was signed." Crabtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48, 55-56, 110 N.E.2d 551 (1953).
Examining each of the documents in turn demonstrates that the proffered documents do not, taken individually or in combination, satisfy the statutes of frauds. While unsigned and signed writings may, in combination, satisfy the applicable statutes of frauds, to do so they must be "connected" writings. Connected writings are those that "clearly refer to the same transaction." Kubin, 801 F. Supp. at 1121. The documents that plaintiff has submitted as evidence of the alleged agreement are not connected and thus do not satisfy this threshold requirement. In addition, the proffered writings suffer from a more fundamental flaw: Drawing every reasonable inference, and construing any ambiguities, in favor of plaintiff, the submitted documents do not contain the material terms of the agreement by which plaintiff claims he is the equitable owner of 44.275% of the Wingate stock. No document submitted by plaintiff states what amount or percentage of the Wingate stock, if any, Zahr owns.
By its terms, the Waiver and Consent refers to a proposed transaction that ultimately failed rather than the transaction which occurred or an agreement by which plaintiff would be entitled to 44.275% of Wingate's stock. Paragraphs five and six of the Waiver and Consent provide that Beker and Zahr would form a corporation "wholly owned by Erol y. Beker and Sameer Zahr" to purchase the Mine for $ 4.8 Million. Financing was to be provided through, inter alia, Chase Manhattan Bank. Thus, the Waiver and Consent contemplates an agreement that is materially different both from that alleged in plaintiff's complaint and that which actually occurred. First, plaintiff contends that he is entitled to 44.275% of Wingate's stock -- a percentage different than that contemplated in the Waiver and Consent. Second, plaintiff's deposition testimony belies the contention that the Waiver and Consent relates to the transaction through which the Mine was acquired: Specifically, plaintiff testified that the proposed transaction described in this document was never consummated. See Defendants' Reply Memorandum of Law in Further Support of Motion For Summary Judgment ("Defendants' Reply Memorandum"), at 3-4 (quoting Transcript of the Deposition of Sameer Y. Zahr). Thus, this document is not "connected" to the other submitted writings, and does not evidence the agreement alleged by plaintiff, because it relates to another proposed transaction that did not occur.
In addition, the Nominee Agreement does not bolster plaintiff's case because it does not evidence any agreement between plaintiff and Beker. Rather, the Nominee Agreement is between Beker and Tectrade. Furthermore, the Nominee Agreement does not refer to plaintiff or to the agreement by which plaintiff alleges that he holds an equitable interest in the Wingate stock. Finally, even assuming that the Nominee Agreement is relevant, the Nominee Agreement, like the Waiver and Consent, does not specify what, if any, percentage of the Wingate stock Zahr would be entitled to. As such, the Nominee Agreement wholly fails to demonstrate a basis for plaintiff's claim to ownership of Wingate stock.
Finally, the RPI Option does not afford a basis for believing that plaintiff's oral evidence rests on a real transaction. By the RPI Option, Beker granted "RPI the right to purchase from [Beker] all of the issued and outstanding shares of capital stock of [Wingate] owned by [Beker] for an aggregate purchase price of $ 4,800,000.00." It is undisputed that if the option had been exercised, Zahr would have indirectly held approximately 44.275% of Wingate's stock through his ownership stake in RPI. This option was not exercised, however. Nevertheless, Zahr argues that this option, even unexercised, evidences his ownership of 44.275% of the Wingate stock. Even construing the language of the option broadly, and drawing every reasonable inference in favor of plaintiff, this Court cannot accept plaintiff's tortured construction.
II. Plaintiff's Claim That, Even if the Signed Writings Do Not Satisfy the Statutes of Frauds, U.C.C. § 8-319(b) Estops Beker From Denying Zahr's Alleged Ownership Interest
Plaintiff next argues that, even if this Court finds that the above-described writings do not satisfy the statutes of frauds, the alleged transaction "would fall under the estoppel exception of U.C.C. § 8-319(b)." Plaintiff's Memorandum, at 13. Citing to Heimlich v. Charlton Lithographing, Inc., 103 Misc. 2d 741, 428 N.Y.S.2d 127 (Sup. Ct. N.Y. Co. 1979), plaintiff avers that this Court should deny defendants' motion because plaintiff has "paid" for his claimed interest in the Wingate securities. In support of this contention, plaintiff states that
Zahr "paid" for his shares within the meaning of § 8-319(b), and his performance was unequivocally referable to his agreement with Beker. Zahr procured the agreement with Windrose jointly with Beker. He authorized Royster's $ 3 million contribution to RPI, and RPI's repayment of $ 3 million to CTI. He directed CTI, which Zahr controlled, to lend $ 3 million to Wingate to purchase Gulf Atlantic. He negotiated jointly with Beker all supply agreements between Wingate and Royster, and Wingate and RPI, and he procured potential purchasers, at Beker's request, of all of the Wingate shares.