Friday, July 11, 2014

An oral agreement as to an interest in a co-op.

Practice point:  Plaintiff alleges that he and defendant orally agreed that defendant would reside in plaintiff's cooperative apartment, rent-free, but that he would pay the maintenance, assessments, and other related charges. Plaintiff also alleges that the agreement was that defendant would vacate the premises at plaimtiff's request, and that the plaintiff would remain "the true, legal and equitable owner."  Plaintiff further alleges that, for one dollar, he let defendant become a joint tenant and coop shareholder, and had defendant so listed on the share certificate and proprietary lease, as an accommodation to defendant, since the coop board objected to open-ended occupancy by a non-owner.

Defendant denies the agreement, and alleges that he received an interest in the apartment in consideration for the services he performed for plaintiff's medical practice. Defendant moved for summary judgment dismissing the complaint on statutes of frauds and limitations grounds.

In opposition, plaintiff argues that he has partly performed the oral agreement and that, if the agreement is not enforced, injustice will result, namely, defendant's receiving a half-interest in exchange for the one dollar's consideration.

The Appellate Division found issues of fact as to whether plaintiff's performance of the alleged agreement is unequivocally referable to the agreement, including whether plaintiff gave defendant an interest in the apartment in consideration for services that defendant performed for him, and whether the written assignment of the lease was legitimate.

Student note:  With respect to the statute of limitations, there are issues of fact as to whether defendant's possession of the apartment was adverse. As to the trespass cause of action, the applicable statute of limitations does not commence while the trespass is continuous and ongoing.

Case:  Lauersen v. Antonopolous, NY Slip Op 05022 (1st Dept. 2014)

Here is the decision.

Monday's issue:  CPLR 3216.