IS THIS DOCUMENT A CONTRACT FOR SALE OF LAND

A family dispute in which Dad and his wife is trying to evict Son and his wife from their home. Son claims to be an "owner" of the property due to a writing which Son claims is a contract of sale. 

Templar v Templar, 2021 NY Slip Op 31611(U), May 14, 2021, Supreme Court, Wayne County, Docket Number: 84778, Judge: Daniel G. Barrett:

"The Plaintiffs, Kathleen and Paul Templar, have brought this action seeking to
evict the Defendants, Jeramie and Jessica Templar from 232 East DeZeng Street, Clyde,
New York. The parties are married to each other and Defendant, Jeramie Templar, is the
son of Plaintiff, Paul Templar.

Each of the Plaintiffs and Defendant, Jessica Templar, testified in this case.

Defendant Jeramie Templar, although present at the hearing, did not testify and no reason
was given for his non-participation in this hearing.

There is no dispute that the Plaintiffs are record owners of the property located at
232 DeZeng Street. The Defendants are relying upon a writing signed by all parties dated
December 1, 2016, as a land contract which prevents the Plaintiffs from evicting them.
This writing will be evaluated at a later point in this Decision.

The testimony of the Plaintiffs is consistent. Plaintiff Kathleen Templar moved to
her daughters house in Canastota in March of 2016 to help the daughter run her business.
This was a temporary move not a permanent relocation. She left various personal effects
at 232 East DeZeng Street including her mother's ashes, family antiques and other items.
She left these various articles of personal property in the first floor bedroom, parlor,
rooms upstairs and the attic. One of the rooms was locked.

In December 2016 Plaintiff Paul Templar moved to Canastota to be with his wife.
He, likewise, left various personal effects, family antiques, military documents and his
military uniform. These items were left in the same places as Kathleen Templar's
belongings-the first floor bedroom, parlor, rooms on the second floor and the attic. One
of these rooms was locked.

The Plaintiffs allowed the Defendants to move into 232 DeZeng Street when
Plaintiff, Paul Templar, temporarily moved to Canastota to be with his wife. The
Plaintiffs entertained the idea of maintaining a life use of the residence with the property
passing to the Defendants after their passing. This was simply a verbal discussion,
nothing was committed to in writing. The Plaintiffs clearly intended to return to 232
DeZeng Street to live.

The previously referenced writing dated December 1, 2016, was executed by all of
the parties and labeled as Exhibit 10 and duly admitted into evidence.

The house needed a new furnace. A grant program was available but it was not
available unless the applicant owned the premises. According to the Plaintiffs that is the
reason Exhibit 10 came into existence. The Plaintiffs testified they did not prepare
Exhibit 10. Defendant, Jessica Templar, testified the Plaintiffs had already executed the
writing before it was presented to her. Plaintiffs testified they signed Exhibit 1 O so that
the Defendant would qualify for the grant to replace the furnace. A new furnace, in fact,
was installed.

While residing in Canastota, at times unsolicited, Defendant Jeramie Termplar
would transport the Plaintiffs' personal property to Canastota on a regular basis. The
Plaintiffs did not request that he do that nor did they give him permission to empty their
house. Defendant, Jessica Templar, refuted this testimony. She testified that the
transport of the personal property was done at the request of the Plaintiffs.
While the Plaintiffs were residing in Canastota, Defendant, Jeramie Templar told
the Plaintiff, Paul Templar, he needed the key to the locked door so that the room could
be winterized. The key was not returned and the lock was replaced by the Defendants.
No key to open this door was ever presented to the Plaintiffs.

In June 2019 the Plaintiffs intended to move back into 232 DeZeng Street. They
were forbidden to do so by the Defendants. The Plaintiffs were barred from moving their
personal belongings back into the house and they have had to seek a residence elsewhere.
According to the Verified Complaint, the Plaintiffs served a 30 Day Notice to
Vacate on the Defendants on July 10, 2019.

The Defendants, per the testimony of Defendant Jessica Templar, asserted that
Exhibit 10 is a land contract. Exhibit 10 was not prepared to qualify for a new furnace
grant. It was her understanding she was purchasing an interest in land.

ANALYSIS
This case pivots on the legal significance of Exhibit 10. Exhibit 10 is very brief
and is reproduced here in its entirety:

Kathleen and Paul Templar have entered into a
rent to own agreement with Jessica and Jeramie
Templar. Jessica and Jeramie are living in the
house at 232 East DeZeng Street at this time, as
of December 1, 2016. Kathleen and Paul Templar
reside at 2990 State Route 31, Canastota.

The phrase in the first sentence "have entered into a rent to own agreement" gives
one the impression that there is a separate agreement that has already been executed. But
this is not the case. The next two sentences tell us where the Defendants and Plaintiffs
resided on December 1, 2016.

Since we are dealing with an interest in real property the Statute of Frauds has to
be satisfied. "The essential terms of a real estate contract typically include the purchase
price, the time and terms of payment, the required financing, the closing date, the quality
of title to be conveyed, the risk of loss during the sale period, and adjustments for taxes
and utilities ... [W]here a contract's material terms are not reasonable definite, the contract
is unenforceable" (Matter of Licata, 76 A.D. 3d 1076, 1077 [2 "d Dep't 2010] 443;
Jefferson Holdings, LLC v Sosa, 174 A.D. 3d 486, 487 [2"d Dep't 2019]).

It is argued that parol evidence will provide the missing links to save this contract.

In Pfiel v Cappiello, 29 A.D. 3d 1187, [3 rd Dep't 2006] quoting the following portion of
the decision in the case of Wacks v King shows this is not accurate:

GOL 5-703(2) provides, in relevant part, that a contract for
the sale of any real property, or interest therein, is void
unless the contract or some note or memorandum thereof,
expressing the consideration, is in writing, subscribed by the
party to be charged. To that end, the underlying instrument
must designate all parties, identify and describe the subject
matter and state all essential terms of a complete agreement.
Where as here, the subject matter of the agreement is real
property, the writing must describe the property involved
with such definiteness and exactness as will permit it to
be identified with reasonable certainty. Finally, the
determination of whether an instrument satisfies the
Statute of Frauds is based solely on the language of the
document itself, without consideration of parol evidence.

Also, to satisfy the Statute of Frauds, a memorandum subscribed by the party to be
charged, must designate the parties, identify and describe the subject matter, and state all
of the essential terms of a complete agreement. A writing is not a sufficient
memorandum unless the full intention of the parties can be ascertained from it alone,
without recourse to parol evidence, Dahan v Weiss, 120 A.D. 3d 540 [2"d Dep't 2014].
"Parol evidence, that is evidence outside the four corners of the document, is
admissible if a court finds an ambiguity in the contract. As a general rule, extrinsic
evidence is inadmissible to alter or add a provision to a written agreement." §3: 19 Statute
of Frauds, generally. 11 PT I West's McKinley's Forms Real Property.

It is also argued that this Court should look at the text messages between the
parties. This is not permissible because of parol evidence and it is not permissible as a
writing that would satisfy the Statute of Frauds, (see Vista Developers Corp. v VFP
Realty. LLC, 17 Misc. 3d 914, 847 N.Y.S. 2d 416).

All the parties who testified, Plaintiffs and Defendant Jessica Templar, testified
they did not prepare Exhibit 10. Defendant Jeramie Templar did not testify. The Court is
permitted to draw a negative inference as a result of his not testifying and find that he
prepared Exhibit I 0. In that event the contract can be interpreted against the interests of
the Defendants.

Based on the foregoing the Court finds that there is no contract for the sale of the
real property and the Plaintiffs are entitled to a warrant of eviction. Counsel for Plaintiffs
to prepare a warrant of eviction which may be served on or after June 25, 2021."

ORAL JOINT VENTURE AND THE STATUTE OF FRAUDS

Get it in writing.

MacKay v Paesano, 2020 NY Slip Op 04155, Decided on July 22, 2020, Appellate Division, Second Department:

"According to the plaintiff, he entered into an oral joint venture agreement with the defendant Michael Paesano (hereinafter the defendant) in which the plaintiff would refer potential investors to the defendant, who would provide them with financial consulting services and investment opportunities for which the defendant would receive fees and commissions. In exchange for the plaintiff's referrals, the defendant allegedly agreed to pay the plaintiff an annual referral fee of 0.5% of all revenues generated from the plaintiff's referrals. The plaintiff alleges that he was never compensated by the defendant despite referring approximately 200 investors to him.

The plaintiff commenced this action, inter alia, to recover damages for breach of contract. The defendant moved, inter alia, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him. The Supreme Court granted that branch of the defendant's motion.

"The essential elements of a joint venture are an agreement manifesting the intent of the parties to be associated as joint venturers, a contribution by the coventurers to the joint undertaking (i.e., a combination of property, financial resources, effort, skill or knowledge), some degree of joint proprietorship and control over the enterprise; and a provision for the sharing of profits and losses" (Mawere v Landau, 130 AD3d 986, 988 [internal quotation marks omitted]; see Clarke v Sky Express, Inc., 118 AD3d 935, 936). The plaintiff failed to state a cause of action based on a joint venture agreement because he failed to allege "a mutual promise or undertaking to share the burden of the losses of the alleged enterprise" (Rocchio v Biondi, 40 AD3d 615, 616). Moreover, the complaint failed to allege joint control over the purported enterprise (see Kaufman v Torkan, 51 AD3d 977). Since the complaint fails to make a showing sufficient to establish the existence of an enforceable joint venture agreement, it also fails to make a showing sufficient to establish the [*2]existence of a fiduciary obligation owed to the plaintiff by the defendant (see Kidz Cloz, Inc. v Officially For Kids, Inc., 320 F Supp 2d 164, 176 [SD NY]). Therefore, accepting the facts as alleged in the complaint as true, and according the plaintiff the benefit of every possible inference (see CPLR 3211[a][7]), we agree with the Supreme Court's determination to dismiss the causes of action alleging breach of a joint venture agreement and breach of fiduciary duty insofar as asserted against the defendant.

We agree with the Supreme Court's determination to dismiss the cause of action alleging breach of contract insofar as asserted against the defendant since enforcement of the alleged oral agreement is barred by the statute of frauds (see General Obligations Law § 5-701[a][10]; JF Capital Advisors, LLC v Lightstone Group, LLC, 25 NY3d 759). Similarly, the causes of action sounding in unjust enrichment and quantum meruit are barred by the statute of frauds (see Snyder v Bronfman, 13 NY3d 504).


Further, we agree with the Supreme Court's determination to dismiss the causes of action alleging fraudulent misrepresentation and promissory estoppel insofar as asserted against the defendant. Those causes of action are duplicative of the unenforceable breach of contract cause of action and, thus, constitute an impermissible attempt to circumvent the statute of frauds (see Martin Greenfield Clothiers, Ltd. v Brooks Bros. Group, Inc., 175 AD3d 636; Gorman v Fowkes, 97 AD3d 726)."

BREACH OF ORAL CONTRACT NOT ENFORCEABLE

Always better to have agreements in writing.

Martin Greenfield Clothiers, Ltd. v Brooks Bros. Group, Inc., 2019 NY Slip Op 06225, Decided on August 21, 2019, Appellate Division, Second Department:

"Pursuant to the terms of an alleged oral agreement, the plaintiff, a men's tailored clothing manufacturer, was to be the exclusive manufacturer of certain custom suits for the defendant, a retail clothier. As per the terms of the alleged oral agreement, either party could terminate the agreement upon one-year notice. Allegedly, the defendant breached the oral agreement by terminating it without providing the requisite notice.

Based on the foregoing, the plaintiff, by its amended complaint, sought to recover damages for breach of contract and under the theory of promissory estoppel. The defendant made a pre-answer motion pursuant to CPLR 3211(a) to dismiss the amended complaint. The Supreme Court granted the motion, and the plaintiff appeals.

We agree with the Supreme Court's determination directing dismissal of the plaintiff's breach of contract cause of action pursuant to CPLR 3211(a)(5), since the alleged oral agreement is unenforceable as violative of the statute of frauds (see Uniform Commercial Code § 2-201[1]; General Obligations Law § 5-701[a][1]). The plaintiff's contention that UCC 2-201(1) is not applicable to the alleged oral agreement is improperly raised for the first time in a reply brief on appeal (see Coppola v Coppola, 291 AD2d 477, 477). Further, contrary to the plaintiff's contention, the alleged oral agreement does not fall within the exception to UCC 2-201(1) for "specially manufactured" goods (Uniform Commercial Code § 2-201[3][a]; see e.g. Automated Cutting Techs., Inc. v BJS N. Am. E, Inc., 2012 WL 2872823, *5, 2012 US Dist Lexis 96745, *15 [ED KY, July 12, 2012, No. 5:10-CV-208-REW]). Moreover, the alleged oral agreement, which by its terms cannot be performed within one year, also is unenforceable under General Obligations Law § 5-701(a)(1) (see Halpern v Shafran, 131 AD2d 434, 435-436; Tip Top Farms v Dairylea Coop., 114 AD2d 12, 33, affd 69 NY2d 625; cf. D & N Boening v Kirsch Beverages, 63 NY2d 449, 458).

In addition, we agree with the Supreme Court's determination directing dismissal of the plaintiff's promissory estoppel cause of action pursuant to CPLR 3211(a)(7) for failure to state a cause of action, as the cause of action is impermissibly predicated on allegations that the defendant violated the same promise it made under the oral agreement (see Celle v Barclays Bank P.L.C., 48 AD3d 301, 303; Brown v Brown, 12 AD3d 176, 176-177; see generally Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389-390). Moreover, to the extent that the plaintiff's promissory estoppel cause of action may have been asserted to circumvent the statute of frauds, the plaintiff was required, but failed to, assert that it suffered unconscionable injury in reliance on the defendant's alleged promise (see Carvel Corp. v Nicolini, 144 AD2d 611, 612-613; D & N Boening v Kirsch Beverages, 99 AD2d 522, 524, affd 63 NY2d 449; Swerdloff v Mobil Oil Corp., 74 AD2d 258, 263-264)."

WHEN IS A CONTRACT FOR SALE OF LAND A BINDING CONTRACT

To enforce a contract for the sale of land, there must be a contract.

443 Jefferson Holdings, LLC v Sosa, 2019 NY Slip Op 05376, Decided on July 3, 2019, Appellate Division, Second Department:

"On January 4, 2013, the defendant and nonparty Aron Froimovits executed a handwritten, one-page agreement (hereinafter the agreement) whereby the defendant was to sell to Froimovits or his assignee two separate properties in Brooklyn, one located on Menahan Street (hereinafter the Menahan property) and the other on Central Avenue (hereinafter the Central Avenue property). The agreement contained a single purchase price, $1,375,000, for both properties. The agreement stated that Froimovits was to give the defendant a deposit of $1,000 "plus $99,000 upon demand of [the defendant] to be held in escrow with [the defendant's] attorney or a title company." Froimovits gave the defendant a check for $1,000. No demand was ever made for the additional $99,000.

The agreement provided that the Menahan property was to be delivered at closing with at least four apartments vacant, while the Central Avenue property was to be delivered with at least three vacant apartments. The closing was to be held "30 days after notice to buyer that the properties are vacant," as that term was described by the agreement. At the time the agreement was executed, the defendant was not the sole owner of the properties.

Subsequently, Froimovits assigned his rights under the agreement to the plaintiff. By letter dated April 30, 2014, an attorney, on behalf of the plaintiff, gave notice to the defendant that the plaintiff was ready, willing, and able to close on May 12, 2014, and indicated that time was of the essence. The closing never occurred.

Thereafter, the plaintiff commenced this action against the defendant seeking specific performance of the agreement insofar as it pertained only to the sale of the Menahan property and to recover damages for breach of contract. The plaintiff moved, inter alia, for summary judgment on the complaint and the defendant cross-moved for summary judgment dismissing the complaint. The Supreme Court denied the plaintiff's motion and granted the defendant's cross motion. The plaintiff appeals.
"To be enforceable, a contract for the sale of real property must be evidenced by a writing sufficient to satisfy the statute of frauds" (O'Hanlon v Renwick, 166 AD3d 890, 891; see General Obligations Law § 5-703[2]; Del Pozo v Impressive Homes, Inc., 95 AD3d 1268, 1270). "To satisfy the statute of frauds, a memorandum evidencing a contract and subscribed by the party to be charged must designate the parties, identify and describe the subject matter, and state all of the essential terms of a complete agreement" (Walentas v 35-45 Front St. Co., 20 AD3d 473, 474; see O'Hanlon v Renwick, 166 AD3d at 891; Nesbitt v Penalver, 40 AD3d 596, 598).

In a real estate transaction, the essential terms of a contract typically include the purchase price, the time and terms of payment, the required financing, the closing date, the quality of title to be conveyed, the risk of loss during the sale period, and adjustments for taxes and utilities (see Saul v Vidokle, 151 AD3d 780, 781; Nesbitt v Penalver, 40 AD3d at 598; see also O'Hanlon v Renwick, 166 AD3d at 891). "[W]here a contract's material terms are not reasonably definite, the contract is unenforceable" (Matter of Licata, 76 AD3d 1076, 1077).

Here, the defendant demonstrated her prima facie entitlement to judgment as a matter of law dismissing the complaint on the basis that the agreement did not satisfy the statute of frauds. The agreement did not state all of the essential terms, including allocation of the price between the two properties, whether one property could be sold without the other, the terms of payment, and the risk of loss during the sale period, and did not mention the adjustments for taxes and utilities which would customarily be included in a transaction of this nature (see Behrends v White Acre Acquisitions, LLC, 54 AD3d 700, 701; Nesbitt v Penalver, 40 AD3d at 598; O'Brien v West, 199 AD2d 369, 370). In addition, the agreement did not include the necessary parties because not all of the owners of the properties executed the agreement (see Kwang Hee Lee v ADJMI 936 Realty Assoc., 46 AD3d 629, 631)."

NOT MARRIED BUT ENDS LIKE A DIVORCE

Baron v Suissa, 2018 NY Slip Op 08453, Decided on December 12, 2018, Appellate Division, Second Department:

The plaintiff and the defendant met in 1992, while each of them was married to another person. After the defendant obtained a divorce from his wife in or about 1995, the parties began living together and, thereafter, moved into a house located in Northport. The parties do not dispute that the defendant is the only person named on the deed and mortgage as the owner of the house. The plaintiff alleged, however, that the parties agreed that the house was to be retitled into joint ownership upon the completion of her divorce. The plaintiff also alleges that she and the defendant entered into an oral agreement to form an antiques business as partners and to share equally in the profits and inventory of the partnership. She further alleged that the defendant promised, in exchange for her domestic services and legal services to the defendant's other businesses during the course of the relationship, to maintain and support her and share equally in the income and assets acquired during the relationship. When the parties' relationship ended in 2008, the defendant sought to evict the plaintiff and her son from the house. The plaintiff alleged that the defendant removed from the house fixtures, antiques, and other personal property in which the plaintiff alleges she had an ownership interest.

In May 2009, the plaintiff commenced this action, seeking relief in the nature of, inter alia, a constructive trust, an accounting of partnership assets, specific performance, recovery for [*2]unjust enrichment, conversion, and replevin, and to recover damages for fraud and slander. The defendant moved, pre-answer, to dismiss the complaint pursuant to CPLR 3211(a)(1), (3), (5), and (7), but the motion was misfiled by the Supreme Court and remained pending and undecided for several years. In 2012, the defendant made a motion, denominated as one pursuant to CPLR 2221(a) for leave to renew his pending and undecided motion to dismiss the complaint. In the order appealed from, the Supreme Court, among other things, granted leave to renew and, upon renewal, granted those branches of the motion which were pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint. The plaintiff appeals, and we modify.

CPLR 3211 provides, inter alia, that a party may move for judgment dismissing one or more causes of action on the ground that "the cause of action may not be maintained because of . . . [the] statute of frauds" (CPLR 3211[a][5]). "On a CPLR 3211 motion made against a complaint, including a motion pursuant to CPLR 3211(a)(5) to dismiss a complaint based on the statute of frauds, a court must take the allegations as true and resolve all inferences which reasonably flow therefrom in favor of the pleader" (AAA Viza, Inc. v Business Payment Sys., LLC, 38 AD3d 802, 803, quoting Cron v Hargro Fabrics, 91 NY2d 362, 366 [internal quotation marks omitted]).

We agree with the Supreme Court that, insofar as they related to real estate, the causes of action arising from the multiple purported oral agreements between the parties were required to be in writing pursuant to the statute of frauds (see General Obligations Law § 5-703). The court, however, failed to consider the plaintiff's contention in opposition to the defendant's motion that her allegations of partial performance under the purported agreements were sufficient to permit her claims related to real estate to survive the absence of an appropriate writing (see General Obligations Law § 5-703[4]). With respect to the defendant's alleged promise to retitle the house in both parties' names upon the plaintiff's divorce and in consideration of her alleged $100,000 contribution to the purchase price, the plaintiff's allegations were sufficient, at this early procedural stage, to fall within an exception to the statute of frauds and survive dismissal. Accordingly, the court should not have granted those branches of the motion which were pursuant to CPLR 3211(a)(5) to dismiss the seventeenth cause of action and so much of the twentieth cause of action as pertain to ownership of the house (see Mackenzie v Croce, 54 AD3d 825, 826).

We disagree with the Supreme Court as to the applicability of the statute of frauds to the plaintiff's allegations as to other express oral agreements between the parties, namely those related to her provision of domestic and legal services in exchange for support and sharing of business profits. Agreements between persons cohabiting together are not per se required to be in writing (see Morone v Morone, 50 NY2d 481, 487-488). Moreover, the plaintiff's allegations as to the terms of the oral agreements do not otherwise fall within the statute of frauds (see General Obligations Law § 5-703; Starr v Akdeniz, 162 AD3d 948, 949; Meagher v Doscher, 157 AD3d 880, 883; Kelley v Galina-Bouquet, Inc., 155 AD2d 96, 100). Accordingly, the court should have denied those branches of the defendant's motion which were pursuant to CPLR 3211(a)(5) to dismiss the second, sixth, ninth, tenth, eleventh, twelfth, thirteenth, eighteenth, and nineteenth causes of action, and the part of the twentieth cause of action that does not pertain to ownership of the house.

We also disagree with the Supreme Court's determination granting that branch of the motion which was to dismiss the plaintiff's third cause of action pursuant to the statute of frauds. The third cause of action seeks the return of certain personal items that allegedly were owned by the plaintiff separately prior to her relationship with the defendant. Thus, the property that was the subject of that cause of action was not within the statute of frauds.

We agree with the Supreme Court that certain evidence submitted by the defendant in support of the motion did not constitute "documentary evidence" within the meaning of CPLR 3211(a)(1).

Nevertheless, we disagree with the court's directing dismissal of the majority of the remaining causes of action, which are for equitable relief, on the ground that the same evidence established as a matter of law that the plaintiff had, among other things, engaged in a dubious scheme to avoid creditors and a Medicaid lien and, in doing so, had committed perjury by disclaiming, at that time, any ownership interest in the house, personal property of value contained in the house, and a safe deposit box and its contents. The court's determination that the plaintiff is, in effect, judicially estopped by that evidence is premature. Viewing the complaint in the light most favorable to the plaintiff and affording her every favorable inference, we find that the complaint [*3]sufficiently alleged causes of action to recover for conversion and seeking, inter alia, a constructive trust and replevin. Accordingly, the court should have denied those branches of the motion which were to dismiss the first, fifth, eighth, twenty-third, and twenty-fourth causes of action, and those portions of the fourth and seventh causes of action that did not relate to property purportedly owned by the plaintiff's son.

We agree with the Supreme Court's determination granting those branches of the motion which were to dismiss those portions of, inter alia, the fourth and seventh causes of action that relate to property allegedly owned by the plaintiff's son. The plaintiff failed to allege facts that would support her right to assert those causes of action on her son's behalf.

IS IT A GIFT OR A LOAN?

JD v. AD, 2017 NY Slip Op 50261 - NY: Supreme Court, Richmond 2017:

"The essential elements of any cause of action to recover damages for a breach of contract are, (1) the existence of a contract, (2) the plaintiff's performance pursuant to the contract, (3) the defendant's breach of its contractual obligations, and (4) damages resulting from that breach. See 143 Bergen St. LLC v. Ruderman, 144 AD3d 1002 (2d Dept. 2016); See also Tudor Ins. Co. v. Unithree Inv. Corp., 137 AD3d 1259 (2d Dept. 2016). The burden of proving the existence, terms and validity of a contract rests on the party seeking to enforce it. See Amica Mut. Ins. Co. v. Kingston Oil Supply Corp. 134 AD3d 750 (2d Dept. 2015).

In contrast, a defendant attempting to establish that a particular transaction was a gift, rather than a loan, has the burden of proof to show, by clear and convincing evidence, that the transaction was made with the requisite "donative intent." See Phelps v. Phelps, 128 AD3d 1545 (4th Dept. 2015) As Defendant Husband has alluded to the Statute of Frauds, it is worth noting that certain contracts must be set forth in a writing. See General Obligations Law § 5-701; See also, Taranto v. Fritz, 83 AD2d 864 (2d Dept. 1981). However, an oral agreement may be enforceable so long as the terms are clear and definite and the conduct of the parties evinces mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms. See Kramer v. Greene, 142 AD3d 438 (1st Dept. 2016). An oral contract to repay a loan may be enforceable if the elements indicated above are met. See Alameldin v. Kings Castle Caterers, Inc., 53 AD3d 514 (2d Dept. 2008); See also King Serv. v. O'Brien, 206 AD2d 728 (3rd Dept. 1994).

Decision

Defendant Wife concedes that she and her Husband borrowed the money from her father. While this is not conclusive proof as to Husband, it is some evidence of the existence of a loan. Wife credibly testified that she and Husband were well aware that this loan had to be repaid in full within six months of the closing of the Amboy Road property. Her testimony, like the testimony of Plaintiff and J.C., was credible. Wife claims that Husband's claim that this money was a gift (notwithstanding the markings on each check indicating it was a loan) is in furtherance of a scorched earth litigation strategy against her and her family. Wife and Plaintiff also credibly testified that Husband agreed to repay Plaintiff the $280,000 only if Wife gave up custody of the two subject children in the underlying divorce case.

Beyond the admissions of Wife, this Court finds that Plaintiff has independently established the necessary elements of his breach of contract cause of action. Here, the contract at issue was oral in nature. Plaintiff credibly testified that he provided his daughter and son in law the combined sum of $280,000 on the condition that it be paid back within six months of the closing, without interest. While the terms of the contract were agreed to between the parties orally, both of the checks at issue clearly indicated that the amounts provided were "loans." (See Pl. Exs. 1;3). Plaintiff further established that Defendant Husband's conduct evidenced that he understood the terms, as Husband sent two text messages to Defendant Wife indicating that he knew that the amount was borrowed, and had to be paid back within six months. (See Pl. Exs. 5;6). See Burnside v. Foglia, 208 AD2d 1085 (3rd Dept. 1994). Accordingly, this Court finds that Plaintiff has established the existence of a contract by a preponderance of the evidence. See Van Wie Chevrolet, Inc. v. General Motors, LLC 145 AD3d 1 (4th Dept. 2016).

In opposition, Husband argues that the transaction at issue was actually a gift from Plaintiff to his daughter, as opposed to a loan. However, this Court finds Husband's testimony in support of this defense to be patently unbelievable, particularly in light of his own text admissions. Indeed, when asked why he would believe this money was a $280,000 gift when, in fact each check had the word "loan" written on them, he could offer no explanation other than to suggest that Plaintiff had given his daughter gifts in the past. As Husband has failed to provide any evidence of donative intent on the part of Plaintiff, his defense must fail. See In re Estate of MacGregor, 119 AD2d 909 (3rd Dept. 1986); See also Phelps v. Phelps, 128 AD3d 1545 (4th Dept. 2015). Accordingly, after listing to the testimony and considering the evidence at trial, this Court finds that the $280,000 given by Plaintiff to defendants was a loan, and not a gift as claimed by Husband.

The second element of a breach of contract action is not in dispute as both Defendants admit that they received the two checks totaling $280,000 that were deposited into their joint account. Accordingly, Plaintiff fulfilled his end of the contract by providing the funds. Plaintiff further established that the defendants herein breached the contract when they did not repay the sums loaned within the six month time period allotted, or upon his subsequent demand for repayment. Finally, the Court finds that the Plaintiff sustained damages as he has not recovered any of the amount that he loaned the parties.

Defendant Husband argues, in the alternative, that even if this Court were to find that the $280,000 given by Plaintiff to the defendants was a loan, that loan would be unenforceable under the Statute of Frauds. (Gen. Obl. Law Sec. 5-701(a). That statute provides, inter alia, that an agreement, is void unless it is reduced to a writing if by its terms it is not capable of being performed within one year's time. See General Obligations Law § 5-701(a).

Defendant Husband's reliance on the Statute of Frauds is wholly unpersuasive. First, and foremost this affirmative defense was not asserted in his Verified Answer (Pl. Ex. 8) and is therefore unavailable to him. See Ryan v. Kellogg Partners Institutional Servs., 79 AD3d 447 (1st Dept. 2010). Nor has the defendant made an application to amend his answer. See Zito v. County of Suffolk, 81 AD3d 722 (2d Dept. 2011). Moreover, even if this defense was properly before this Court (which it is not), it would not prevent Plaintiff's recovery here. The credible testimony of Plaintiff and Wife coupled with Husband's own text admissions confirm that the he and Wife had six months in which to repay the debt. As this debt was payable within one year, this statute would not apply even if it were properly plead. See Weksler v. Weksler, 140 AD3d 491 (1st Dept. 2016).

Husband next argues that if this Court finds that these funds constituted a loan, then it was a loan made only to Wife for which he bears no legal responsibility. This argument is equally unpersuasive. First, the Court credits Plaintiff's testimony that the loan was intended for the defendants as Husband and Wife. In fact, the loan benefitted Husband more than Wife, as it was intended to purchase property to house his electrical business. Moreover, as this loan was given during the defendant's marriage, and it obviously benefited both defendants, it constitutes marital debt that should be shared by the parties. See Gillman v. Gillman, 139 AD3d 667 (2d Dep't. 2016)."

PROMISSORY ESTOPPEL AND THE STATUTE OF FRAUDS

Matter of Hennel 2017 NY Slip Op 05266 Decided on June 29, 2017 Court of Appeals Fahey, J. :

"Petitioners concede that the statute of frauds would generally bar reliance on their oral bargain with decedent. As the Appellate Division acknowledged, wills are ambulatory in nature, and decedent was free to revoke or alter his 2006 will until his death (see Matter of American Comm. for Weizmann Inst. of Science v Dunn, 10 NY3d 82, 92 [2008]). Petitioners do not allege that decedent promised never to revoke or alter his 2006 will. In any event, Estates, Powers and Trusts Law § 13-2.1 (a) (2) requires every agreement or promise to make a "testamentary provision of any kind" to be in writing. General Obligations Law § 5-701 (a) (1) further requires any agreement or promise that "[b]y its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime" to be in writing. The Appellate Division therefore correctly held that "petitioners were obliged to bring this case within an exception to the statute of frauds" (Hennel, 133 AD3d at 1122).

Petitioners attempted to do so by relying on the doctrine of promissory estoppel. Although respondent agrees that the statute of frauds will not apply if petitioners can establish the elements of promissory estoppel and that they would otherwise suffer unconscionable injury, [*5]this Court has not yet expressly recognized this principle. We adopt it now, for several reasons.

The Restatement (Second) of Contracts endorses the principle that a promise inducing reasonable reliance "is enforceable notwithstanding the Statute of Frauds if injustice can be avoided only by enforcement of the promise" (Restatement [Second] of Contracts § 139 [1]; see also 10 Richard A. Lord, Williston on Contracts §§ 27:14-27:15, at 185-206 [4th ed 2011]; 4 Corbin on Contracts § 12:8, at 38-44 [1997]). This Court has previously cited section 139 of the Restatement with approval (see Farash v Sykes Datatronics, 59 NY2d 500, 504-505 [1983]).

This Court has also recognized that the related doctrines of equitable estoppel and part performance may preclude application of the statute of frauds under certain circumstances (see e.g. American Bartenders School v 105 Madison Co., 59 NY2d 716, 718 [1983], affg 91 AD2d 901 [1st Dept 1983]; Anostario v Vicinanzo, 59 NY2d 662, 663-664 [1983]; Woolley v Stewart, 222 NY 347, 350-351 [1918]; cf. Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229, 234 n 1 [1999])[FN2]. Furthermore, the Appellate Division departments have unanimously recognized that promissory estoppel may preclude enforcement of the statute of frauds if application of the statute would result in unconscionability (see e.g. Carvel Corp. v Nicolini, 144 AD2d 611, 612-613 [2d Dept 1988]; Bernard v Langan Porsche Audi, 143 AD2d 495, 496 [3d Dept 1988]; American Bartenders School, 91 AD2d at 902; Buddman Distribs. v Labatt Importers, 91 AD2d 838, 839 [4th Dept 1982]; Swerdloff v Mobil Oil Corp., 74 AD2d 258, 261-264 [2d Dept 1980], lv denied 50 NY2d 803, 913 [1980]).

Finally, this equitable doctrine is grounded in sound principles of fairness. As this Court has stated in a different context,

"The Statute of Frauds was designed to guard against the peril of perjury; to prevent the enforcement of unfounded fraudulent claims. But, as Professor Williston observed: 'The Statute of Frauds was not enacted to afford persons a means of evading just obligations; nor was it intended to supply a cloak of immunity to hedging litigants lacking integrity; nor was it adopted to enable defendants to interpose the Statute as a bar to a contract fairly, and admittedly, made'" (Morris Cohon & Co. v Russell, 23 NY2d 569, 574 [1969], quoting 4 Williston on Contracts § 567A, at 19-20 [3d ed 1961]).

In other words, equity "will not permit the statute of frauds to be used as an instrument of fraud" (Wood v Rabe, 96 NY 414, 425 [1884]).

We hold that where the elements of promissory estoppel are established, and the injury to the party who acted in reliance on the oral promise is so great that enforcement of the [*6]statute of frauds would be unconscionable, the promisor should be estopped from reliance on the statute of frauds.[FN3]"

IS IT A LOAN, A GIFT OR WHAT?

When two parties are not related, there is a longstanding principle that the presumption arising from the delivery of a check is that it was tendered in payment of a debt and not as a loan. (Leask v. Hoaoland, 205 NY 171 [1912]; Tn Re Effross, 43 ÄDS39 [1st Dept 1973]), In the absence of other evidence, a loan is not presumed from the making of a check, there must be evidence that the payment was intended as a loan. (Marks v. Kellogg, 170 AD 468 [1st Dept 1915]). Care must be given in considering evidence to overcome the presumption that the check tendered represented some debt or obligation owed. (Kofihler v. Adler., 78 NY 287 [1879]. So what happens when two parties enter into an oral arrangement for a business and one transfers a check to the other party as some sort of contribution to the business? The deal sours and the only written evidence available is a cancelled check? Was the delivery of a check a loan, payment of a debt, or a contribution of a business interest? Was it a gift? That was a matter recently discussed with me and it emphasizes the old saying that an oral agreement is not worth the paper it is written on. Before you enter into any transaction, with family, friends, or business acquaintances.....consult with an attorney.