        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

133
CA 14-01201
PRESENT: SCUDDER, P.J., SMITH, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


MARTHA IRAKOZE, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

GENNARO SAMBUCO, ALSO KNOWN AS JIM SAMBUCO,
DEFENDANT-APPELLANT.


LAW OFFICES OF MICHAEL J. HUGHES, PLLC, AMHERST (MICHAEL J. HUGHES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

STEINER & BLOTNIK, BUFFALO (M. KREAG FERULLO OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Frederick
J. Marshall, J.), entered March 10, 2014. The order denied the motion
of defendant to eject plaintiff from certain real property and granted
the cross motion of plaintiff for summary judgment compelling specific
performance.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying the cross motion and as
modified the order is affirmed without costs.

     Memorandum: Plaintiff and defendant entered into an agreement,
dated November 15, 2011, which provided that plaintiff was to purchase
property from defendant in “as is” condition for $35,000. Plaintiff
paid defendant the $35,000 and took possession of the premises in June
2012, although title had not yet been transferred. In January 2013,
defendant advised plaintiff that adjustments would be made at closing
for rents that plaintiff had collected and for extensive renovations
and improvements that defendant had made to the property at
plaintiff’s request. Plaintiff thereafter commenced this action for
breach of contract seeking, inter alia, specific performance of the
agreement.

     Defendant brought by order to show cause a motion seeking to
eject plaintiff from the premises, and plaintiff cross-moved for
partial summary judgment on her cause of action for specific
performance. We conclude that Supreme Court erred in granting the
cross motion, and we therefore modify the order accordingly. Although
plaintiff established her entitlement to judgment as a matter of law
by showing that the parties agreed to the sale of the property for
$35,000, and that any modification of the agreement must be in writing
(see General Obligations Law § 15-301 [1]; American Credit Servs. v
                                 -2-                           133
                                                         CA 14-01201

R.V. & Mar. Corp., 248 AD2d 1007, 1007), we nevertheless conclude that
defendant raised an issue of fact whether, under the circumstances
presented here, the agreement was modified by an oral agreement
between the parties. Specifically, defendant established, with
objective evidence, that he completed extensive renovations and
improvements to the property after the parties entered into the
purchase agreement for the sale of the property in “as is” condition
in November 2011 (see Rose v Spa Realty Assocs., 42 NY2d 338, 343; cf.
Klein v Klein, 79 NY2d 876, 878; Nassau Beekman LLC v Ann/Nassau
Realty LLC, 105 AD3d 33, 39). Furthermore, we note that the record
establishes that the receipt for $35,000 in June 2012, which both
parties signed, stated that the funds were paid “towards” the purchase
of the property, which implies that the amount was not the entire
purchase price. We therefore conclude that defendant raised an issue
of fact whether the renovations and improvements are “unequivocally
referable to [a] modification” of the agreement to purchase the
premises in “as is” condition for $35,000 (Rose, 42 NY2d at 343).




Entered:   March 20, 2015                      Frances E. Cafarell
                                               Clerk of the Court
