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December 22, 1999


The opinion of the court was delivered by: Spatt, District Judge.


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 can.

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 contract.


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 contract.


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. 1990).

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 ...

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