Upon the following papers read on Defendant s motion seeking dismissal of the complaint:

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1 INDEX NO SUPREME COURT - STATE OF NEW YORK IAS TERM, PART 25 NASSAU COUNTY PRESENT: HONORABLE LEONARD B. AUSTIN Justice JOSEPH GOLDWASSER, - against STUART COOPER, SHARON COOPER, JUSTIN CASE TRAVEL, INC. d/b/a PEAK TRAVEL PLANNERS and d/b/a FAIRVIEW CRUISE & TRAVEL, Defendants. - Plaintiff, X Motion R/D: Submission Date: Motion Sequence No.: OOl/ MOT D PLAINTIFF S ATTORNEY Richard A. Klass, Esq. 16 Court Street - 3Sfh Floor Brookiyn, New York DEFENDANT S ATTORNEY Stuart K. Cooper, Esq Grand Avenue Baldwin, New York Upon the following papers read on Defendant s motion seeking dismissal of the complaint: Defendants Notice of Motion; Affidavit of Stuart K. Cooper, Esq.; Affirmation of Richard A. Klass, Esq. in Opposition; Affidavit of Joseph Goldwasser, and supporting papers; Defendants Reply Memorandum. Defendants move for an order pursuant to CPLR 3211 (a) (5) and (7) dismissing the causes of action in the complaint. Their motion is granted only to the extent of

2 GOLDWASSER v. STUART COOPER, SHARON COOPER, et al. Index No dismissing the first cause of action as against Sharon Cooper only and, in all other respects is denied. BREACH OF CONTRACT The first cause of action is based upon an agreement which by its terms is not to be performed within one year from the making thereof; i.e., the amount to be paid was based on business generated for a period of six (6) years. The contract alleged in the complaint is subject to the requirements of General Obligation Law ( GOL ) Defendants seek dismissal on the ground that GOL has not been satisfied. The Court of Appeals has opined that a series of signed and unsigned writings that clearly refer to the same transaction or subject matter read together may satisfy the Statute of Frauds. See, Crabtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48 (1953). See also, Lindsev v. M.A. Zeccola & Sons, Inc., 26 F.3d 1236 (3rd Cir.1994). Plaintiff has provided the Court with sufficient writings exchanged between the parties to sustain the first cause of action against both Stewart Cooper and the corporate defendant Justin Case Travel, Inc. d/b/a Peak Travel Planners. As to Defendant Sharon Cooper, there is no evidence of a writing subscribed by her. In the absence of an exception to the Statute of Frauds that applies to this Defendant, the first cause of action must be dismissed as against her. See Durante Bros. Const. Corp v. Colleqe Point Sports Ass n Inc., 207 A.D. 2d 379, 615 N.Y.S. 2d 455 (2nd Dept. 1994); Sladden v. Rounick, 59 A.D. 2d 882,399 N.Y.S. 2d 670 (lst Dept. 1977); H. Feinerman v. Russ Toss, Inc., 37 A.D. 2d 805, 324 N.Y.S. 2d 855 (lst 2

3 GOLDWASSER v. STUART COOPER, SHARON COOPER, et al. Index No Dept. 1971); and Backus Plywood Core v. Commercial Decel Inc., 317 F. 2d 339 (2nd Cir.), cerf. den., 375 U.S. 879, 84 S. Ct. 146 (1963). While the complaint alleges part performance, part performance alone does not except a contract from the requirement of a writing signed by the party against whom enforcement is sought. GOL 5-701, See, Koniqsberq v. Securitv Nat. Bank, 66 F.R.D. 439 (S.D.N.Y. 1975); and Marcraft Recreation Corp. v. Francis Devlin Co., Inc., 506 F. Supp (S.D.N.Y. 1981). A contract which is not to be performed within one year is not ratified or rendered valid by part petformance unless such part performance is unequivocally referable only to the purported agreement of the parties. See, American Bartenders School, Inc. v. 105 Madison Co., 59 N.Y.2d 716, 463 N.Y.S.2d 424 (1983); Ruha v. Guior, - A.D. 2d -, 717 N.Y.S. 2d 35 (lst Dept. 2000); and Jokav, Inc. v. Laoarenne, 138 A.D.2d 778,525 N.Y.S.2d 411 (3rd Dept. 1988). Plaintiff s attempt to show an exception to the Statute of Frauds by referring to the contract as a qualified financial contract under GOL (b) is completely lacking in merit. The sale of a travel agency does not, in any way, fall within the ambit of a qualified financial contract. GOL (.b) (2). The Court of Appeals, in Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 974 (1994), articulated the standard to be applied on a motion to dismiss pursuant to CPLR The pleadings are liberally construed, and the allegations are presumed true and accorded every possible favorable inference. The test is whether the allegations in the complaint, enhanced by any affidavits submitted in opposition to 3

4 tiuld WAssJzK v. S 1 Index No UAK I CUUY f?k, SHAKUN CUUYJzK, et al. the motion, fit any cognizable theory of recovery. See, Sauders v.winship, 57 N.Y.2d 391,456 N.Y.S.2d 720 (1982); 219 Broadwav Corp. v. Alexanders, 46 N.Y.2d 506,414 N.Y.S.2d 889 (1979); and Brinklev v. Casablancas, 80 A.D.2d 428,438 N.Y.S.2d 1004 (lst Dept., 1981). Accordingly, the first cause of action for breach of contract is dismissed as to Sharon Cooper as the alleged contract on which said action is based is unenforceable under the Statute of Frauds. UNJUST ENRICHMENT Plaintiff has alleged in the complaint that he sold and Defendant accepted the assets of Peck Tours, Inc. and that Plaintiff has not received full value thereof. Plaintiff is entitled to plead a cause of action as to all Defendants to recover the balance of the reasonable value of the transferred property. See Mendelsohn v. Levine, 24 A.D. 2d 1007,265 N.Y.S. 2d 979 (2nd Dept. 1965). Here, the Plaintiff alleged a second cause of action for unjust enrichment or quasi contract. An action to recover on the theory of unjust enrichment is based on the equitable principle that a person must not be allowed to enrich himself unjustly at the expense of another. An action to recover on the theory of unjust enrichment is for restitution or on quasi contract. Such a claim is based on the equitable principle that a person must not be allowed to enrich himself unjustly at the expense of another. In order to recover on the theory of unjust enrichment, the Plaintiff must show that the Defendant has enriched himself unjustly and that he can not, in good conscience, retain the proceeds. 22A NY Jur 2d 4

5 Index No Contracts, , pp Here, the second cause of action is sufficient to show that Plaintiff has been unjustly deprived of his property by the transfer of assets to Defendant without receiving full payment for its value. Plaintiff is seeking restitution against Defendant who has been unjustly enriched thereby. In equity and good conscience, Plaintiff pleads, Defendant should be required to pay Plaintiff for such assets. Plaintiff sufficiently states a cause of action for restitution or unjust enrichment. Stephen Douqlas Ltd. v. Benet, 153 B.R. 617 (E.D.N.Y. 1993); and Ptachewich v. Ptachewich, 96 A.D. 2d 582,465 N.Y.S. 2d 277 (2nd Dept. 1983). See also, 22A NY Jur 2d Contracts, 5 516; Accordingly, it is, ORDERED, that the first cause of action is dismissed as to Sharon Cooper; and it is, ORDERED, that the motion is, in all other respects, denied; and it is ORDERED, that counsel shall appear for a preliminary conference on March 2, 2001 at 9:15 a.m. This constitutes the decision and Order of the C Dated: Mineola, NY January 29,200l Hon. LEONARm. AUSTIN, J.S.C. 5