ANTHONY DeTHOMASIS JR. et al., Appellants,
JOSEPH J. VIVIANO JR., Also Known as JOSEPH VIVIANO, Respondent.
Calendar Date: January 13, 2017
Wolkenbreit & Siegfeld, LLP, Albany (Robert E. Ganz of
counsel), for appellants.
Feeney, Centi & Mackey, Albany (Daniel J. Centi of
counsel), for respondent.
Before: Peters, P.J., Devine, Clark and Aarons, JJ.
MEMORANDUM AND ORDER
from that part of an amended order of the Supreme Court
(Zwack, J.), entered December 28, 2015 in Albany County,
which partially denied plaintiffs' motion to dismiss
defendant's affirmative defenses.
was in a relationship with plaintiffs' mother and, in
2005, the two purchased real property in the City of Albany
as joint tenants with right of survivorship. The couple
intended to build their residence on the property and, later
that year, defendant purportedly agreed to "pay in equal
shares to [plaintiffs] an amount equal to all funds
contributed by" their mother toward the construction if
she predeceased him. The couple then executed a prenuptial
agreement before they married in 2006. Plaintiffs' mother
died in 2012, leaving defendant as sole owner of the
commenced this action in 2015 to recover monies they were
purportedly owed by defendant under the 2005 agreement.
Following joinder of issue, plaintiffs moved for dismissal of
all affirmative defenses asserted in defendant's answer.
Supreme Court granted the motion in part, but found that the
third, fourth, sixth, seventh and tenth affirmative defenses
had been properly asserted. Plaintiffs now appeal.
as the parties seeking to dismiss the affirmative defenses,
bore the heavy burden of demonstrating that the defenses
lacked merit as a matter of law (see CPLR 3211 [b];
New York Univ. v Continental Ins. Co., 87 N.Y.2d
308, 323 ; Van Wert v Randall, 100 A.D.3d
1079, 1081 ). In reviewing plaintiffs' motion to
determine whether they did so, we liberally construe the
pleadings, accept the facts alleged by defendant as true and
afford him the benefit of every reasonable inference (see
Granite State Ins. Co. v Transatlantic Reins. Co., 132
A.D.3d 479, 481 ; Bank of N.Y. v Penalver, 125
A.D.3d 796, 797 ; Bank of Am., N.A. v 414 Midland
Ave. Assoc., LLC, 78 A.D.3d 746, 748-749 ).
third affirmative defense asserted that the 2005 agreement
had not been properly executed . While the copies of the
2005 agreement in the record appear to be signed, defendant
averred in opposition to the motion to dismiss that he had
not signed the agreement and that his purported signature on
the copies in the record was not genuine (see Sim v
Farley Equip. Co. LLC, 138 A.D.3d 1228, 1229 ).
Treating that representation as true - and noting the
impropriety of plaintiffs' efforts to call it into
question with new proof in their reply papers - we cannot say
that the third affirmative defense lacks merit (see Kevin
Kerveng Tung, P.C. v JP Morgan Chase & Co., 105
A.D.3d 709, 710 , lv dismissed 22 N.Y.3d 949');">22 N.Y.3d 949
; Matter of Kushaqua Estates v Bonded
Concrete, 215 A.D.2d 993, 994 ).
next address the fourth affirmative defense, which attacked
the 2005 agreement as violative of the statute of frauds. The
statute of frauds is implicated here inasmuch as the 2005
agreement employs the death of plaintiffs' mother as the
trigger for defendant's payment obligation (see
General Obligations Law § 5-701 [a] ; Meltzer v
Koenigsberg, 302 NY 523, 525 ; Klein v Jamor
Purveyors, 108 A.D.2d 344, 348 ). The statute of
frauds demands that the 2005 agreement be "subscribed by
the party to be charged therewith" but, as noted above,
defendant denies executing the agreement (General Obligations
Law § 5-701 [a]). It is also clear that "a writing
will not satisfy the statute of frauds unless it
unequivocally establish[es] all the essential elements of a
contractual relationship... such as price, terms, parties and
a description of the subject matter" (McCormick v
Bechtol, 68 A.D.3d 1376, 1378-1379  [internal
quotation marks and citation omitted], lv denied 15
N.Y.3d 701 , cert denied 562 U.S. 1063');">562 U.S. 1063
). The 2005 agreement contemplated that an annexed
schedule would specify the amount owed by defendant, but the
copies of the agreement contained in the record either have a
blank schedule attached or lack it altogether. The 2005
agreement further required that future contributions by
plaintiffs' mother be "added to" the schedule
in some manner, but the complaint only alleges a verbal
understanding as to how that amount would be calculated
(see Behrends v White Acre Acquisitions, LLC, 54
A.D.3d 700, 701 ; Pino v Harnischfeger, 42
A.D.3d 980, 984 ; Ashkenazi v Kelly, 157
A.D.2d 578, 578-579 ). Supreme Court was accordingly
correct to determine that defendant, afforded the benefit of
every favorable inference, asserted a cognizable statute of
challenges to other affirmative defenses have been examined
and afford no basis for disturbing the order of Supreme
Peters, P.J., Clark and Aarons, JJ., concur.
that the amended order is ...