                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 20, 2014                    518282
________________________________

POST HILL, LLC,
                     Appellant,
     v                                       MEMORANDUM AND ORDER

E. TETZ & SONS, INC.,
                    Respondent.
________________________________


Calendar Date:    October 17, 2014

Before:   Stein, J.P., McCarthy, Garry, Lynch and Devine, JJ.

                              __________


      Kalter, Kaplan, Zeiger & Forman, Woodbourne (Ivan Kalter of
counsel), for appellant.

      Blustein, Shapiro, Rich & Barone, LLP, Goshen (Gardiner S.
Barone of counsel), for respondent.

                              __________


McCarthy, J.

      Appeal from an order of the Supreme Court (Gilpatric, J.),
entered March 26, 2013 in Sullivan County, which, among other
things, granted defendant's motion to dismiss the complaint.

      Plaintiff arranged to sell a parcel of real property
through an online auction. Defendant executed and delivered the
bidding package, containing several documents and notices, and
the required down payment to United County Absolute Auctions &
Realty, the auctioneer. Defendant entered the online bidding and
was ultimately the highest bidder but, after Absolute Auctions
delivered the contract of sale, defendant refused to execute and
return it with the balance of the down payment. Plaintiff
commenced this action seeking specific performance or,
alternatively, damages for breach of contract. Defendant moved
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to dismiss the complaint based on the statute of frauds.
Plaintiff cross-moved to amend the complaint. Supreme Court
granted defendant's motion and denied the cross motion.
Plaintiff appeals.

      Supreme Court properly dismissed the complaint because no
agreement existed which satisfied the statute of frauds. The
statute of frauds provides, as relevant here, that a contract for
the sale of real property "is void unless the contract or some
note or memorandum thereof, expressing the consideration, is in
writing, subscribed by the party to be charged" (General
Obligations Law § 5-703 [2]). To satisfy that statute, the
memorandum "must designate all parties, identify and describe the
subject matter and state all of the essential terms of a complete
agreement" (Conway v Maher, 185 AD2d 570, 572 [1992]; see Regan v
Real Source Charities, Inc., 45 AD3d 1156, 1157 [2007]; Pentony v
Saxe, 2 AD3d 1076, 1076 [2003]). The memorandum is not required
to be contained in one document; separate "signed and unsigned
writings [can] be read together, provided that they clearly refer
to the same subject matter or transaction," contain all of the
essential terms of a binding contract (Crabtree v Elizabeth Arden
Sales Corp., 305 NY 48, 55 [1953]; see Syman v Vanderheuval, 249
AD2d 870, 872 [1998]; Grimm v Marine Midland Bank, 117 AD2d 901,
903 [1986]; see also William J. Jenack Estate Appraisers &
Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 477 [2013]), and the
"unsigned writing [was] prepared by the party to be charged"
(Matter of West-Herr Ford, Inc. v Tax Appeals Trib. of State of
N.Y., 16 AD3d 727, 729 [2005]). At least one document signed by
the party to be charged must "establish[] a contractual
relationship between the parties," with the unsigned documents
referring on their face to the same transaction (Crabtree v
Elizabeth Arden Sales Corp., 305 NY at 56; accord Grimm v Marine
Midland Bank, 117 AD2d at 903).

      Here, plaintiff asserts that an enforceable contract can be
found by piecing together the bidding package documents that were
provided to defendant prior to the auction – the real estate
agent disclosure form (signed by defendant), auction notice, and
terms and conditions for bidding and purchase of real estate at
the online auction (signed by defendant) – and the bidding
history and contract of sale that were created after the auction.
                              -3-                518282

Defendant did not prepare any of these documents, so the unsigned
documents generally cannot be considered as binding on defendant
for purposes of constructing a memorandum that would satisfy the
statute of frauds (compare Matter of West-Herr Ford, Inc. v Tax
Appeals Trib. of State of N.Y., 16 AD3d at 729). Even if we
considered all of the proffered documents, the only document that
identifies plaintiff as the owner of the property – and, thus, as
a party to the contract – is the contract of sale. A blank
sample contract of sale was referenced in the terms and
conditions and made available on Absolute Auctions's website, but
the completed contract of sale was not created until after the
auction and was never signed by anyone. Although a writing that
includes all of the essential terms of an agreement will not be
impaired by the parties' anticipation of the execution of a more
formal contract (see Garnot v LaDue, 45 AD3d 1080, 1082 [2007]),
here the writings prior to that more formal contract were not
complete because they did not include the identity of the selling
party. Thus, as the alleged memorandum did not include all of
the essential terms of a contract, it was insufficient to satisfy
the statute of frauds and the alleged contract is void (see Regan
v Real Source Charities, Inc., 45 AD3d at 1157; Pentony v Saxe, 2
AD3d at 1076-1077; Bordeau v Oakley, 185 AD2d 417, 419 [1992]).

      Supreme Court properly dismissed the complaint because
plaintiff did not provide proof to establish the part performance
exception to the statute of frauds. A contract may be enforced,
despite failing to comply with the statute of frauds, "in cases
of part performance" (General Obligations Law § 5-703 [4]). When
analyzing part performance for potential invocation of equitable
principles, courts should only consider the actions and
detrimental reliance of the party seeking enforcement of the
contract (see Messner Vetere Berger McNamee Schmetterer Euro RSCG
v Aegis Group, 93 NY2d 229, 236-237 [1999]; McCormick v Bechtol,
68 AD3d 1376, 1379 [2009], lv denied 15 NY3d 701 [2010], cert
denied ___ US ___, 131 S Ct 655 [2010]). Additionally, the
conduct must be "unequivocally referable" to the alleged
agreement (Anostario v Vicinanzo, 59 NY2d 662, 664 [1983]
[internal quotation marks omitted]; see McCormick v Bechtol, 68
AD3d at 1379). Plaintiff tries to rely on defendant's conduct,
but we must only consider plaintiff's conduct and reliance.
Considering that there were other bidders, plaintiff's actions in
                              -4-                  518282

proceeding with the auction were not unequivocally referable to a
consummated agreement with defendant, but are explainable as one
preliminary step toward forming a contract with some bidder in
the future (see S.S.I. Invs. v Korea Tungsten Min. Co., 80 AD2d
155, 158-159 [1981], affd 55 NY2d 934 [1982]; see also Pentony v
Saxe, 2 AD3d at 1077; Bordeau v Oakley, 185 AD2d at 419). As
plaintiff cannot rely on the doctrine of part performance to
avoid the statute of frauds, Supreme Court properly dismissed the
complaint.

      Based on our holdings above, we need not address the
parties' remaining contentions.

     Stein, J.P., Garry, Lynch and Devine, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
