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CARLTON CENTER, LLC, ET AL., appellants, v. CARLTON NURSING HOME, INC., respondent.

DECISION ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly determined that the subject draft agreement was unenforceable under the statute of frauds (see General Obligations Law § 5-703). Contrary to the plaintiffs' contention, there is nothing in the record to indicate that the defendant, through words or conduct, ratified the draft agreement. The retention of the plaintiffs' down payment for approximately three months in an interest-bearing escrow account is insufficient to constitute an implied ratification (see Papakostas v. Harkins, 168 A.D.2d 547), or to support the plaintiffs' claim that the defendant should be estopped from reneging on its alleged promises (see F.B. Tr. Rd. Corp. v. DRT Constr. Co., 241 A.D.2d 930; Papakostas v. Harkins, supra).

Equally unavailing is the plaintiffs' argument that their act of making a substantial down payment constituted part performance of the draft agreement so as to take the agreement outside the statute of frauds (see Bordeau v. Oakley, 185 A.D.2d 417, 419; H. Rothvoss Sons v. Estate of Neer, 139 A.D.2d 37; Tuttle, Pendelton Gelston v. Dronart Realty Corp., 90 A.D.2d 830).

The plaintiffs' remaining contentions are without merit.

KRAUSMAN, J.P., TOWNES, MASTRO and RIVERA, JJ., concur.

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CARLTON CENTER v. CARLTON NURSING HOME
(Mar 31, 2003)