Nos. 7303, 603872/09.

94 A.D.3d 479 (2012)

941 N.Y.S.2d 495

2012 NY Slip Op 2588

JOSEPHSON LLC, Doing Business as THE MOINIAN GROUP, et al., Respondents, v. COLUMN FINANCIAL, INC., et al., Appellants, et al., Defendants.

Appellate Division of the Supreme Court of New York, First Department.

Decided April 5, 2012.

Defendants contend that the breach of contract cause of action should be dismissed because the subject contract expressly prohibits oral modifications and the alleged oral agreement is barred by the Statute of Frauds (see General Obligations Law § 15-301). Plaintiffs failed to raise an issue of fact whether there was a partial performance of the contract that would permit enforcement of the oral modification (see F. Garofalo Elec. Co. v New York Univ., 270 A.D.2d 76, 80-81 [2000], lv dismissed 95 N.Y.2d 825 [2000]). The act they identify as partial performance, i.e., the delivery of the purchase price to the title company, is not "unequivocally referable" to the oral modification; it can also reasonably be regarded as preparatory to performing the contract (see e.g. Merrill Lynch Interfunding, Inc. v Argenti, 155 F.3d 113, 122-123 [1998]). Further, the record demonstrates that the parties did not agree on all the material terms of the alleged oral agreement. The deposition testimony upon which plaintiffs rely reflects a mere agreement to agree (see e.g. Meyers Assoc., L.P. v Conolog Corp., 61 A.D.3d 547 [2009]).

Plaintiffs abandoned their remaining claims by failing to oppose the parts of defendants' motion that sought summary judgment dismissing those claims.


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