Opinion
Argued March 24, 1981
Decided May 5, 1981
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, HILDA G. SCHWARTZ, J.
John M. Burns, III, for appellant. Neil S. Goldstein and Donald S. Hillman for respondents.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
It is axiomatic that an oral agreement for the sale of real property is unenforceable under the Statute of Frauds (General Obligations Law, § 5-703, subd 2). Part performance will render the contract enforceable only where such performance is "unequivocally referable" to the alleged agreement of sale (e.g., Burns v McCormick, 233 N.Y. 230, 232). Inasmuch as the mere purchase of an adjoining parcel of land from a third party is equivocal, it is not sufficient part performance to remove the bar of the statute (cf. Gracie Sq. Realty Corp. v Choice Realty Corp., 305 N.Y. 271, 279-281). Nor in these circumstances may plaintiff rely upon the same alleged performance to create an estoppel and thereby circumvent the part performance rule (see Burns v McCormick, supra, at pp 234-235).
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES WACHTLER, FUCHSBERG and MEYER concur in memorandum.
Order affirmed.