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SOUTH LIBERTY REALTY CORPORATION, respondent, v. GARY MERCURY, ET AL., appellants.

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

The Supreme Court providently exercised its discretion in granting the plaintiff's motion for leave to reargue (cf., Foley v. Roche, 68 A.D.2d 558, 567-568; CPLR 2221).

We agree that the plaintiff is not barred by the Statute of Frauds from proving an oral modification to the parties' purchase agreement by operation of, inter alia, the doctrine of partial performance. Contrary to the defendants' contentions, the plaintiff's acts were unequivocally referable to the modification (see, Rose v. Spa Realty Assos., 42 N.Y.2d 338, 343-344, 345). In particular, we note that the deferral of payment of $150,000 of the purchase price at closing of title can only be explained by reference to the oral agreement to modify, and is not compatible with any provision of the written agreement (see, Anostario v. Vicinanzo, 59 N.Y.2d 662, 664; Taylor v. Blaylock Partners, 240 A.D.2d 289, 290). Of course, it remains to be determined upon trial whether the defendants' duty to make this payment has yet arisen.

The defendants' remaining contentions do not warrant any relief herein.

FEUERSTEIN, J.P., KRAUSMAN, SCHMIDT and COZIER, JJ., concur.

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SOUTH LIBERTY REALTY CORP. v. MERCURY
(Mar 18, 2002)