Richard L. Feist, Appellant, v. Mitchell Mandell, Respondent, et al., Defendants

Richard L. Feist, Appellant, v Mitchell Mandell, Respondent, et al., Defendants. [646 NYS2d 514] [MAJORITY] —Order, Supreme Court, New York County (Leland DeGrasse, J.) entered February 15, 1995, as supplemented by the order of the same court and Justice entered April 4, 1995, which granted defendant Mandell’s motion to dismiss the complaint as against him on the ground of the Statute of Frauds, unanimously affirmed, without costs. Dismissal of plaintiffs first, second and third causes of action, which are predicated upon the enforcement of an oral escrow agreement, was warranted since the alleged oral agreement by its express terms was not to be performed within one year from its making (see, General Obligations Law § 5-701 [a] [1]). We reject plaintiff’s arguments that the complaint alleged writings which, when taken together, are sufficient to satisfy the Statute of Frauds, and that there was part performance of the oral escrow agreement, also sufficient to satisfy the Statute of Frauds. Significantly, the writings plaintiff relies upon contain language that is antithetical to the existence of an escrow agreement. Concur — Sullivan, J. P., Ellerin, Rubin and Mazzarelli, JJ.