The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
Can an affidavit, given by a defendant in a unrelated lawsuit
some 16 months after the defendant has allegedly made an oral
contract, constitute a "writing" sufficient to remove that oral
contract from the Statute of Frauds? This Court finds that it
This breach of contract case concerns an aborted sale by
Defendants to the Plaintiff of their house in East Quogue, N Y
Presently before the Court are cross-motions by both parties for
partial summary judgment with regard to the sufficiency of the
alleged contract of sale. The Court is also now prepared to rule
on the Defendants' motions for judgment as a matter of law at the
close of the Plaintiff's case, at the close of the evidence, and
following the verdict, and on the Plaintiff's post-verdict
request for judgment directing specific performance of the
In the Spring of 1997, the Plaintiff took an interest in
purchasing the Defendants' house in East Quogue, N.Y. The
Plaintiff contacted Deborah Foglia, a real estate agent at the
brokerage that listed the house, and after touring the house,
began preliminary negotiations to purchase it. All of the
parties' negotiations were conducted though Foglia; the parties
never spoke directly to each other. On or about May 27, 1997, the
parties, through Foglia as intermediary, apparently reached an
oral agreement by which the Plaintiff would purchase the house
for $610,000, subject to some minor conditions and a mortgage to
be held by the Defendants. Foglia then drafted a "Memorandum of
Sale" (Plaintiff's Ex. 2) on a form created by the brokerage,
inserting the parties'
names and addresses, the names and addresses of the parties'
lawyers, the address of the property, the sale price, a closing
to be held "ASAP," and listing the conditions of the sale as
"home inspection-termite, owner will hold $200,000 mortgage for 5
years, rental will be prorated at closing." At the bottom of the
form, on a line marked "Seller's Agent," Foglia signed her name.
On direct examination during the Plaintiff's case, Foglia
admitted that her involvement with the sale was not pursuant to
any listing agreement or other formal, written authorization by
the Defendants for her to act on their behalf.
Between May 27, 1997 and July 22, 1997, the ultimate scheduled
closing date, the Defendants' attorneys sent copies of an
unexecuted form real estate contract to the Plaintiff, and the
Plaintiff's counsel made modifications to the contract including
inserting a clause requiring the plumbing and heating systems to
be in working order. In the cover letter enclosing the modified
contract, which the Plaintiff had signed, the Plaintiff's
attorney also requested that the Defendants give a warranty for
the plumbing and heating systems for 6 months following the
closing. However, it is undisputed that the Defendants never
signed this or any other contract. During this same timeframe,
the Plaintiff conducted a home inspection that, apart from a
missing coil that made inspecting the heating system impossible,
was satisfactory. The Defendants eventually arranged to have the
coil re-installed, and a few days prior to the closing, the
Plaintiff conducted a second inspection of the heating system.
On July 22, 1997, the Defendants refused to proceed with the
scheduled closing. The parties differ on why the July 22, 1997
closing was cancelled. The Plaintiff claims that the Defendants
demanded an increase in the purchase price to match a subsequent
offer they had received and refused to prorate the rent paid by
the current tenants. The Defendants claimed that the sale was to
be an "as us" sale and that the rent was not to be prorated
between the parties.
The Plaintiff then commenced this action for specific
performance and to recover damages based on two causes of action:
(i) breach of contract and (ii) promissory estoppel. The parties
cross-moved for summary judgment, with the Plaintiff contending
that there existed, as a matter of law, an enforceable contract
to sell the property, and the Defendants contending that the
alleged contract is barred, as a matter of law, by the Statute of
Frauds because it was not signed by them. This Court reserved
decision on the motions until the conclusion of the Plaintiff's
case. Following the Plaintiff's case, the Court orally denied the
Defendants' motion for summary judgment for reasons more fully
set forth herein.
Upon the consent of both sides, the portion of the verdict
sheet presented to the jury relating to the breach of contract
cause of action asked only whether the Plaintiff had proven that
there was a "meeting of the minds," and therefore a valid
contract between the parties; the verdict sheet did not direct
the jury to find whether there was performance on the part of the
Plaintiff or which party had precipitated the breach. The jury
returned a verdict in favor of the Plaintiff on the breach of
contract cause of action, finding that there had been a meeting
of the minds, and therefore a valid contract, and awarded damages
in the amount of $100,000. The Defendants now move for judgment
as a matter of law dismissing the complaint, while the Plaintiff
requests that the Court order specific performance of the
Summary judgment is appropriate if the record "show[s] that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986); Wilkinson v. Russell, 182 F.3d 89,
96-97 (2d Cir. 1999); In Re: Blackwood Associates, L.P.,
153 F.3d 61, 67 (2d Cir. 1998). The Court must resolve all
ambiguities and draw all reasonable inferences in the light most
favorable to the party opposing the motion. See Quaratino v.
Tiffany & Co., 71 F.3d 58 (2d Cir. 1995); Twin Laboratories,
Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir.
A similar standard applies in deciding a motion for judgment as
a matter of law under Fed.R.Civ.P. 50(a)(1). This Is Me, Inc. v.
Taylor, 157 F.3d 139 (2d Cir. 1998); Concerned Area Residents
for the Environment v. Southview Farm, 34 F.3d 114 (2d. Cir.
1994); Weldy v. Piedmont Airlines, 985 F.2d 57 (2d Cir. 1993).
Under a motion for judgment as a matter of law, the court must
determine whether a reasonable jury could only reach one verdict
on the evidence presented. Id. In making this determination,
the court is required to view the evidence in the light most
favorable to, and draw all reasonable inferences in favor of, the
non-moving party — in this case, the Plaintiff. Id.
A. As to Defendants' motion for summary judgment on the
Statute of Frauds
New York State's Statute of Frauds, N.Y. Gen. Oblig. L. §
5-703(1), provides that
[a]n estate or interest in real property . . . cannot
be created, granted, assigned, surrendered or
declared, unless . . . by a deed or conveyance in
writing, subscribed by the person creating, granting,
assigning, surrendering or declaring the ...