Summary
In Walsh, the plaintiff sought an "accounting and a sum of money equal to 20% of the value of new acquisitions of real property."
Summary of this case from Elkerson v. LeeOpinion
June 5, 1989
Appeal from the Supreme Court, Suffolk County (Doyle, J.).
Ordered that the order is affirmed, with costs.
In this complaint, the plaintiff alleges that he orally entered into a joint venture agreement with the defendants, based upon which he seeks an accounting and a sum of money equal to 20% of the value of new acquisitions of real property. The defendants' principal claim is that the purported oral agreement is void under the Statute of Frauds.
Whether the alleged oral agreement be characterized as a partnership, as described by plaintiff in his deposition, or a joint venture, as asserted in the complaint, we have held that such oral agreements to deal in real property are not rendered void by the Statute of Frauds (see, Ackerman v. Landes, 112 A.D.2d 1081; Elias v. Serota, 103 A.D.2d 410; Pace v. Perk, 81 A.D.2d 444; see also, Walsh v. Henning, 31 Misc.2d 871, affd 16 A.D.2d 707). The rationale underlying this rule is that realty acquired for commercial purposes, pursuant to a parol partnership agreement, becomes partnership property (see, Johnson v. Johnson, 111 A.D.2d 1005). As such, "[f]or the purpose of reconciling the equities between the partners, the real property is said to have been equitably converted to personalty and is to be dealt with as such" (Johnson v. Johnson, supra, at 1006; see also, Mattikow v Sudarsky, 248 N.Y. 404; Fairchild v. Fairchild, 64 N.Y. 471; Elias v. Serota, supra; Pace v. Perk, supra). Accordingly, the plaintiff is not, as the defendants assert, seeking to acquire an interest in the land, but is asserting an alleged interest in claimed partnership assets (see, Johnson v. Johnson, supra). Viewed in this light, the Statute of Frauds cannot be considered a bar to the plaintiff's claim, which must ultimately be tested at trial.
We have considered the defendants' remaining contentions and find them to be without merit. Kooper, J.P., Spatt, Harwood and Rosenblatt, JJ., concur.