NOSTRAND v. 745 JEFFCO

Ordered that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Kings County, inter alia, for the entry of a judgment, among other things, declaring that the parties did not enter into a valid 10-year lease.

The defendants established their entitlement to summary judgment declaring that the parties did not enter into a valid 10-year lease based, inter alia, upon the statute of frauds ( see General Obligations Law § 5-703). In opposition, the plaintiffs failed to raise a triable issue of fact. The plaintiffs rely on the equitable doctrine of part performance ( see General Obligations Law § 5-703), which required conduct by them which was "unequivocally referable" to the purported 10-year lease ( Burns v McCormick, 233 NY 230, 234 [1922]). "Unequivocally referable" conduct is conduct which is "inconsistent with any other explanation" ( Richardson Lucas, Inc. v New York Athletic Club of City of NY., 304 AD2d 462, 463). There is no evidence in the record of conduct by the plaintiffs which is unequivocally referable to a purported 10-year lease and inconsistent with any other explanation ( see Lebowitz v Mingus, 100 AD2d 816, 817).

The plaintiffs' remaining contentions are without merit ( see American Bartenders School v 105 Madison Co., 59 NY2d 716, 718; Foster v Kovner, 44 AD3d 23; NGR, LLC v General Elec. Co., 24 AD3d 425; Dunn v BH Assoc., 295 AD2d 396, 397; Melwani v Jain, 281 AD2d 276, 277).

Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Kings County, inter alia, for entry of an appropriate declaratory judgment ( see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).