Claims Barred by Statute of Frauds Despite Existence of Documents Referring to Agreement

On October 26, 2015, Justice Demarest of the Kings County Commercial Division issued a decision in Lake Overlook Partners, LLC v. Sosa, 2015 NY Slip Op. 51686(U), holding that claims were barred by the statute of frauds despite the existence of documents referring to an agreement.

In Lake Overlook Partners, the defendant moved to dismiss an action on statute of frauds grounds. The court granted the motion notwithstanding that the plaintiff could point to documents referring to the parties' agreement, explaining:

Pursuant to CPLR 3211 (a) (5), dismissal is required where the causes of action of a complaint may not be maintained because of the statute of frauds. General Obligations Law § 5-703 (a) (1) provides that an estate or interest in real property, other than a lease for a term not exceeding one year, or any trust or power, over or concerning real property, or in any manner relating thereto, cannot be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the person creating, granting, assigning, surrendering or declaring the same, or by his or her lawful agent, thereunto authorized by writing. General Obligations Law § 5-703 (a) (2) further provides that a contract for the leasing for a longer period than one year, or for the sale, of any real property, or an 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, or by his or her lawful agent thereunto authorized by writing.

(Internal quotations and citations omitted). The plaintiff conceded that there was no written agreement between the parties. The plaintiff

argue[d] that the statute of frauds has been satisfied and that a valid contract was formed. It relies upon a series of e-mails annexed to its opposition papers as exhibits. In this regard, General Obligations Law § 5-701(b)(4) provides that the tangible written text produced by an e-mail shall constitute a writing and any symbol executed or adopted by a party with the present intention to authenticate a writing shall constitute a signing.

However, in order 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.

It is true that the statutorily required writing need not be contained in one single document, but rather may be furnished by piecing together other, related writings.

(Internal quotations and citations omitted) (emphasis added). The court went on to evaluate the documents submitted by the plaintiff and concluded that they "at best, show that there were merely negotiations for an agreement. Indeed, the e-mails submitted by plaintiff conclusively establish that defendant and Assoumou intended to finalize their agreement in a signed writing, which never materialized, inasmuch as negotiations had been ongoing and were eventually discontinued by defendant. As such, there was no mutual assent or meeting of the minds as to any proposed agreement or joint venture." (Internal quotations and citations omitted).