Opinion
March 1, 1994
Appeal from the Supreme Court, Kings County (Julius Vinik, J.).
"On a bench trial, the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnessess." (Claridge Gardens v. Menotti, 160 A.D.2d 544, 544-545.) Upon review of the record, we find that a fair interpretation of the evidence supports the finding that defendant Fischer did not acquire title to the stock in plaintiff realty corporation, the owner of the subject premises, from Chaikel Chanin, who allegedly had authority from all of the shareholders to make such a transfer (see, Fleet Credit Corp. v Cabin Serv. Co., 192 A.D.2d 421), and that his relationship to the premises was rather that of managing agent. Moreover, we agree with the trial court that the alleged oral agreement would in any event be barred by the Statute of Frauds, since the alleged services provided by defendant, claimed to constitute part performance, are as consistent with his being the managing agent as the owner of the premises (see, Newman v. Crazy Eddie, 119 A.D.2d 738, 739, lv dismissed 68 N.Y.2d 998). The trial court also properly held that defendant's receipt and retention of rental proceeds was a continuing wrong that made the action for an accounting timely for up to six years prior to the commencement of the action (Butler v. Gibbons, 173 A.D.2d 352). We have considered defendant's remaining arguments and find them to be without merit.
Concur — Rosenberger, J.P., Ellerin, Kupferman, Nardelli and Williams, JJ.