On May 6, 2022, Justice Cohen of the New York County Commercial Division issued a decision in Han v. Chen, 2022 NY Slip Op. 31501(U), dismissing on summary judgment a claim for breach of a contract for the sale of cemetery plots under the Statute of Frauds, explaining:
Plaintiff moves for summary judgment on her third cause of action for breach of an oral agreement involving the sale of two cemetery plots. Defendants move for summary judgment dismissing this cause of action.
In support of her motion for summary judgment, plaintiff argues that her documentary evidence (cashed checks, photographs, and the parties’ text messages), as well as defendants’ deposition testimony, sufficiently demonstrate a prima facie case as to (1) the making of an oral agreement between Fred Chen to and plaintiff to buy two cemetery lots for $120,000, (2) plaintiff’s full payment of the $120,000 to defendants, (3) defendants’ affirmative conduct in meeting with the cemetery management for the transfer of titles and signing title transfer related documents, (4) defendants’ assurance to execute final transfer deeds when the weather became warmer, and (5) defendants’ breach of the sale agreement by refusing to sign and return the transfer deeds to the cemetery.
Defendants dispute that the Chens agreed to sell plaintiff two cemetery plots. In any event, as plaintiff admits, the contract she alleges that she entered into with the Chens was purely oral. Defendants argue that, as a result, it is void under the applicable statute of frauds, General Obligations Law (GOL) § 5-703(2), which states that a contract for the sale of an interest in real property is unenforceable where there is no written note or memorandum of the agreement subscribed by the party to be charged and expressing the consideration. Cemetery plots are regarded as real property subject to the statute of frauds set forth in GOL § 5-703 (2).
Although she specifically testified that no portion of the purported agreement, including, but not limited to, the price, was in any way memorialized in a writing of any kind, plaintiff now argues that a pair of forms, two checks, and a short series of text messages between her and Reddy Chen are sufficient to demonstrate the existence of an enforceable contract. However, the text messages-as opposed to emails, which may in some cases be sufficient to satisfy the statute of frauds-do not satisfy the mandate that the writing memorializing an oral contract be subscribed, i.e., signed, by the party to be charged, i.e., the Chens.
Further, although signed and unsigned writings may be read together for purposes of the statute of frauds, they must
clearly refer to the same subject matter or transaction, contain all of the essential terms of a binding contract, and the unsigned writing must be prepared by the party to be charged.Moreover, in order to satisfy the statute of frauds, the writing must sufficiently state all the material and essential terms of a complete agreement, such as the price, identity of the parties, and the parcel of real estate to be sold, the closing date and medium of payment, and the quality of title to be conveyed, adjustments for taxes and risk of loss.
Accordingly, a writing purporting to memorialize an oral contract is inadequate where, as here, it lacks language indicating an intent to be bound, and where, as here, it lacks language indicating assent on all essential terms of a complete agreement in the nature of a real estate transaction, e.g., price, payment, closing date, and risk of loss.
. . .
Plaintiff next argues that the alleged contract is enforceable under the partial performance exception in GOL § 5-703 (4), which states that nothing contained in this section abridges the powers of courts of equity to compel the specific performance of agreements in cases of part performance. Plaintiff argues that she fully performed the terms of the oral agreement to purchase the cemetery lots by paying defendants $120,000. However, GOL § 5-703 (4) only applies in cases where the court, acting in equity, is asked to compel specific performance of the agreement at issue. The exception does not apply where, as here, the plaintiff seeks money damages, which is a remedy at law. In this action, plaintiff does not seek, and never previously sought, specific performance of the agreement she says she entered into with the Chens for the sale of two cemetery plots.
(Internal quotations and citations omitted).