Appellate Division, Fourth Department
Real Estate Contract — Statute of Frauds
Specific Performance — Declaratory Action
Ferchaw v. Troxel
Appealed from Supreme Court, Steuben County
Background: The plaintiffs commenced an action seeking a declaration that the real estate contract executed by the parties is valid and enforceable. The court granted summary judgment to the plaintiffs and directed the defendant to grant the plaintiff access to the property to obtain an appraisal. The defendant argued that the plaintiffs offered no evidence that they had the financial wherewithal to purchase the property and perform under the contract. Further, the defendant argued that the plaintiffs’ mortgage contract violated the Statute of Frauds.
Ruling: The Appellate Division affirmed. The court noted that because the plaintiffs were not asking for specific performance, they did not have to demonstrate that they were ready, willing and able to perform. Indeed, without the ability to secure an appraisal, the plaintiffs could not secure financing. Additionally, while the defendant failed to plead the Statute of Frauds in his answer, the mortgage contract sufficiently satisfied the Statute of Frauds.
Thomas J. Rzepka of Burke, Albright, Harter & Reddy for the defendant-appellant; Gabriel V. Rossettie of Rossettie Rossettie & Martino for the plaintiffs-respondents