Opinion
Submitted February 1, 2001
February 26, 2001.
In an action, inter alia, for a judgment declaring that the parties agreed to a lease, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Nassau County (Lally, J.), entered May 11, 2000, which granted the defendants' motion for summary judgment and declared that the parties did not agree to the lease.
Jack Mevorach, Cedarhurst, N.Y., for appellant.
Gusrae, Kaplan Bruno, New York, N.Y. (Brian D. Graifman of counsel; Brandon S. Reif on the brief), for respondents.
Before: SANTUCCI, J.P., KRAUSMAN, S. MILLER and SMITH, JJ., concur.
DECISION ORDER
ORDERED that the order and judgment is affirmed, with costs.
The Supreme Court correctly determined, as a matter of law, that the instant action is barred by the Statute of Frauds (see, General Obligations Law § 5-703). The plaintiff may not sue for breach of an admittedly unexecuted lease (see, Alison Place v. Contowers Assocs. Ltd. Partnership, 261 A.D.2d 169). The record clearly demonstrates that negotiations between the parties failed to reach a final agreement. Although the defendant Auto America of New Jersey, Inc., consensually took possession of the premises at issue during negotiations and improved it in anticipation of an agreement, this did not constitute part performance unequivocally referable to an oral agreement upon all essential terms of a five-year lease (see, Wilson v. La Van, 22 N.Y.2d 131; Aeromar C. Por A. v. Port Auth. of N.Y. N.J., 145 A.D.2d 584, 586-587; Onorato v. Lupoli, 135 A.D.2d 693; Cunnison v. Richardson Greenshields Secs., 107 A.D.2d 50). Furthermore, for the partial performance doctrine to be applicable, "the facts of part performance must have been those of the party insisting on the contract, not those of the party insisting on the Statute of Frauds" (Messner Vetere Berger McNamee Schmetterer Euro RSCG v. Aegis Group, 93 N.Y.2d 229, 237).
The plaintiff's remaining contentions are without merit.