Opinion
June 25, 1998
Appeal from the Supreme Court, New York County (Lewis Friedman, J.).
Review of the record reveals that there are triable questions of fact as to whether defendant's remittance to plaintiff of a check for $22,000 and its involvement in meetings regarding the construction of the subject ice rinks, as well as its assisting plaintiff to finance the rinks, constituted partial performance "'unequivocally referable'" to the oral partnership agreement alleged by plaintiff, and, as such, sufficient to take the alleged agreement out of the Statute of Frauds (Anostario v. Vicinanzo, 59 N.Y.2d 662, 664; Pomeranz v. Blodnick, 162 A.D.2d 323, 325; Adelman v. Rackis, 212 A.D.2d 559). We note in this connection that, contrary to the motion court's finding, it is not at all clear that defendant's essential obligation under the alleged agreement was to act as a guarantor and, accordingly, that the court's dismissal of the contract cause for lack of a writing evidencing defendant's agreement to guarantee plaintiff's obligations (see, General Obligations Law § 5-701 [a] [2]) was in error. We agree, however, with the motion court that plaintiff's first cause of action for fraud was properly dismissed, since it was not pleaded with the requisite particularity and is without support in the record (Greschler v. Greschler, 51 N.Y.2d 368, 375; CPLR 3016 [b]).
Concur — Sullivan, J. P., Ellerin, Williams, Tom and Mazzarelli, JJ.